Kerala High Court
Mohandas vs T.N.S.Mohanan on 10 February, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933
MACA.No. 1921 of 2011 ( )
-------------------------
OP(MV)NO.734/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD
--------------------------
APPELLANT(S)/PETITIONER:
-------------------------------------------
MOHANDAS,
S/O.RAJAMANIKKAM,AGED 50 YEARS,
RESIDING AT VADATHODE HOUSE,VANDITHAVALAM.P.O.,
PALAKKAD DISTRICT.
BY ADV. SRI.BABY MATHEW
RESPONDENT(S)/RESPONDENTS:
---------------------------------------------------
1. T.N.S.MOHANAN,
S/O.T.P.NATESAN,NARAYANA MANDIR,EAST VILLAGE,
KOLLENGODE.P.O.,PALAKKAD DISTRICT-678 001.
(R.C.OWNER OF BUS NO.KL-9.J.1810.)
2. GOPALAKRISHNAN,
S/O.P.N.MANI,AGED 54 YEARS,ALAMPALLAM VILLAGE,
KOLLENGODE.P.O., PALAKKAD.PIN-678 001
(DRIVER OF BUS NO.KL-9.J.1810)
3. THE NEW INDIA ASSURANCE CO.LTD,
N.S.TOWERS,NEAR STADIUM BUS STAND,COIMBATORE ROAD,
PALAKKAD-678 001.
R3 BY ADV.SRI.A.C.DEVY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 10-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI, JJ.
=====================
M.A.C.A. NO. 1921 OF 2011
=====================
Dated this the 10th day of February 2012
JUDGMENT
Ramakrishna Pillai.J The injured is in appeal.
2. The appellant who sustained injuries in a road traffic accident on 26/2/2006 approached the Tribunal claiming a compensation of Rs.6 lakhs against which the learned Tribunal awarded a sum of Rs.2,67,500/- under various heads.
3. Allegedly the appellant while riding a motor cycle was hit down by a bus insured with the third respondent - Insurance Company. The liability was fixed on the driver of the bus. This was not disputed.
4. In the memorandum of appeal it is alleged that the amount awarded under various heads are very low. MACA 1921/2011 -2-
5. We have heard the learned standing counsel for the appellant as well as the learned standing counsel for the third respondent-Insurance company.
6. During the course of argument, we were taken to the medical records which revealed that the appellant sustained the following injuries on account of the accident:
"Segmental open fracture right femur; comminuted fracture of right proximal tibia, fracture 7th and 8th ribs on the right side, contusion of right chest, pneumothoroax, lacerated wound right; multiple abrasions iliac and right leg"
Exts.A6 to A10 which are the copies of the discharge summaries would reveal that the appellant was hospitalised for a period of 40 days in different spells. It was pointed out by the learned counsel for the appellant though in spite of the long period of hospitalisation, no amount was awarded by the learned Tribunal towards bystander's expenses. We see force in the said argument. The MACA 1921/2011 -3- Tribunal could have awarded bystander's expenses at the rate of 200/- per day for a period of 40 days, which will come to Rs.8000/-. We award the said sum towards bystander's expenses. Against the claim of Rs.75,000/- towards compensation for pain and suffering, the learned Tribunal has awarded Rs.20,000/-. This is also under challenge. We are of the definite view that considering the nature of injuries as well as the long period of hospitalisation some more amount could have been awarded by the Tribunal towards compensation for pain and suffering. So we are awarding an additional sum of Rs.10,000/- on that count. Towards loss of amenities in life for the period during which the appellant had undergone treatment, the learned Tribunal awarded a sum of Rs.10,000/-. Undoubtedly, the appellant might have been compelled to take rest for a number of days. So taking this aspect into consideration, we are awarding a sum of Rs.10,000/- towards compensation for loss of amenities for MACA 1921/2011 -4- the period during which the appellant had undergone treatment. It was argued by the learned counsel for the appellant that though the monthly income of the appellant was Rs.8,000/- for computing the compensation for permanent disability, the learned Tribunal has fixed the notional income of the appellant at Rs.3,000/- per month. But it is relevant to note that though it is submitted by the learned counsel for the appellant, that the appellant was running a quarry, there is nothing on evidence to show whether the appellant's earning capacity as the operator of the quarry has been reduced on account of the disability sustained by him in the accident. So it was only just and proper to fix the notional income of the appellant at Rs.3000/- per month for arriving at the quantum awarded under the head permanent disability.
7. Thus we find that the appellant is entitled to an additional sum of Rs.28,000/- as compensation. MACA 1921/2011 -5-
8. The appeal is allowed. The award shall stand modified as above.
9. Additional amount awarded will carry interest at the rate specified by the Tribunal in the award.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
A.V.RAMAKRISHNA PILLAI, JUDGE ks.
True copy P.s.to judge 1921 The injured is in appeal.
The appellant who sustained injuries in a road traffic accident on 26/2/2006 approached the Tribunal claiming compensation of Rs.6 lakhs against which the learned Tribunal awarded a sum of Rs.2,67,500/- as compensation under various heads.
Allegedly the appellant while riding a motor cycle was hit down by a bus insured with the third respondent - Insurance Company. The liability was fixed on the driver of the bus which was not disputed.
In the memorandum of appeal it is alleged that the amount awarded under various heads are very low.
We have heard the learned standing counsel for the appellant as well as the learned standing counsel for the third respondent-Insurance company.
During the course of argument, we have taken to the medical records which revealed that the appellant sustained following injuries on account of the accident:
Open fracture right femur....lacerated wound on the right eye...
Exts.A6 to A10 which are the copies of the discharge summaries would reveal that the appellant was hospitalised for a period of 40 days in different spells. It was pointed out by the learned counsel for the appellant though in spite of the long period of hospitalisation, no amount was awarded by the learned Tribunal towards bystander's expenses. We see force in the said argument. The Tribunal could have awarded bystander's expenses at the rate of 200/- per day for a period of 40 days, which will come to Rs.8000/-. We award the said sum towards bystander's expenses. Against the claim of Rs.75,000/- towards compensation for pain and suffering, the learned Tribunal has awarded Rs.20,000/-. This is also under challenge. We are of the definite view that considering the nature of injuries as well as the long period of hospitalisation some more amount could have been awarded by the Tribunal towards compensation for pain and suffering. So we are awarding an additional sum of Rs.10,000/- on that count. Towards loss of amenities in life for the period during which the appellant had undergone treatment, the learned Tribunal awarded a sum of Rs.10,000/-. Undoubtedly, the appellant might have been compelled to take rest for a number of days. So taking this aspect into consideration, we are awarding a sum of Rs.10,000/- towards compensation for loss of amenities for the period during which the appellant had undergone treatment. It was argued by the learned counsel for the appellant that only though the monthly income of the appellant was Rs.8,000/- for computing the compensation for permanent disability, the learned Tribunal has fixed the notional income of the appellant at Rs.3,000/-. But it is relevant to note that even according to the learned counsel for the appellant, he was running a quarry and there is nothing on evidence to show that whether the appellant's earning capacity as the operator of the quarry has been reduced on account of the disability sustained by him in the accident, so it was only just and proper to fix the notional income at Rs.3000/- for arriving at the quantum awarded under the head permanent disability.
On a consideration of the entire facts and circumstances of the case, we are of the definite view that the appellant is entitled to an additional sum of Rs.28,000/- more.
The appeal is allowed.
The award shall stand modified as above.
Additional amount awarded will carry interest at the rate specified by the Tribunal in the award. 2214 31 2200
M.A.C.A. 221/20.. is preferred b y the registered owner of the vehicle which was involved in the accident and M.A.C.A. No.257/2009 is preferred by the claimants who were the legal heirs of the deceased who was a 27 year old driver. The ground raise din M.A.C.A.221/20.. is in spite of EXts.A8 and a9 and the finding entered by the learned Tribunal on the basis of those documents that the driver of the offending vehicle was having a valid driving licence as well as badge , the learned Tribunal erroneously exonerated the Insurance company from the obligation to deposit the amount with the first instance. Grounds raised in M.A.C.A. 257/2009 are to the effect that the compensation awarded to the effect that the compensation awarded by the Tribunal under various heads including under the head of dependency is quite inadequate. We shall first deal with M.A.C.A.221/.. Arguments of Mr.K.M.Firoz, learned counsel for the appellant was that the learned Tribunal even after having noticed Exts.A8 and A9 which were certified copies of the permit in respect of the offending vehicle and the driving licence particulars in respect of the driving licence held by the driver of the offending vehicle had given recovery right to the Insurance Company to recover the amount to be paid.... To the award on the reason that the owner did not comply with the direction passed by the Tribunal to produce the driving licence as well as the permit. Particulars according to the learned counsel, the learned Tribunal was not at all justified in drawing adverse inferences against the owner in the teeth of Exts.A8 and a9 which constituted legal evidence in the case. The reply of Mr.M.A.George, learned standing counsel for the Insurance company in M.A.C.A.221/20.. was that EXts.A8 and a9 documents are not originals. We shall now deal with the submissions in M.A.C.A. No.257/2009. Learned counsel for the appellant argued that the accident occurred in the year 2005 and it was admitted that the deceased was a driver. His monthly income should have been taken notionally to be at least Rs.3,000/-. It was then argued that the proper deduction to be made towards the personal expenses of the deceased who was unmarried was 1/4th and not 1/3rd. Mr. Joe Kalliath, learned counsel for the Insurance company in M.A.C.A.No.257/2009 submitted that the multiplicand adopted by the learned Tribunal brought to here. But according to him, the multiplier of 18 adopted by the Tribunal is erroneous in view of the judgment of the Supreme court in Sarla Verma v. Delhi Transport Coprporation[ (2009(6)S.C.C.121]. Mr.Joe Kalliath also submitted that it is adequate compensation which has been awarded by the Tribunal under various other heads. Having bestowed our anxious considerations to the submissions addressed at the bar in both these appeals, we are of the view that M.A.C.A. 221/2012 filed by the owner of the vehicle is only to be allowed. There was no warrant for drawing adverse inference against the owner as Ext.A8 and Ext.A9 documents had already been produced by the claimants themselves. It was evident from EXTs.A8 and A9 that the driver was having badge as well as current driving licence. According to us, the learned Tribunal should not have recovery right to the Insurance company. The M.A.C.A. is allowed and the recovery right given to the Insurance company under the impugned awarded is valid. Any attachment presently pending in respect of vehicles of the appellant in M.A.C.A. 221/2012 will stand withdrawn.
Coming to M.A.C.A. 257/2009, we find force in the submission of the learned counsel for the appellant that the learned Tribunal has adopted a low multiplicand for arriving at the dependency compensation. Since it is not disputed that the deceased was a driver and as the accident occurred in 2005, the learned Tribunal could have taken monthly income at Rs.3,000/-..But .... The submission of Joe Kalliath the correct multiplier to be adopted was 17. So also we are of the view that the learned Tribunal need have deducted only 1/4th as 1/3rd. When recomputed the dependency compensation on the basis. It will be seen that the appellant will become eligible for getting Rs.99,000/- more towards dependency compensation. We award to the appellant additional sum of Rs.99,000/-towards dependency compensation. It is seen that the deceased died on the same day of the accident. We award to the appellant Rs.1500/- more towards compensation for pain and suffering. So also we are of the view that the appellants are entitled for Rs.3,000/- more towards funeral expenses. Thus in total, we award to the appellant Rs.1,17,00/- over and above what is awarded by the Tribunal. The entire compensation including compensation awarded by the Tribunal will carry interest at the rate of 7.5% per annum. The appeals are allowed. The parties are directed to suffer their respective costs. 466
These revisions under Section 20 of the Kerala Buildins (Lease & Rent control)Act 1965 filed bythe tenants occupying adjacent rooms belonging to the respondent. The common ground projected in the two rent control petitions was the ground under sub-section (3) of Section
11. The need projected was that the buildings are required bona fide, so that the 8th respondent who is one of the landlords can conduct a fast-food business by utilising both the rooms. The bona fides of the need was disputed and it was contended that the rent control petition was liable to fail by virtue of the first and second provisos to sub-section (3) of Section 11. The Rent Control Court in the first instance after finding that the need is bona fide and also that the tenants are not entitled to the protection of the second proviso would dismiss the rent control petition on the ground that the landlords were in vacant possession of other vacant buildings including the upstair portion of the double storied building which takes in the buildings which are subject matter of the Rent Control petition. The landlords preferred an appeal before the Appellate Authority. The Rent Control appellate Authority reversed the order of the Rent control court and ordered eviction finding that the first proviso to sub-section (3) of Section 11 does not operate against the tenants. The tenants brought up the matter in revision as R.c.r.Nos.144 & 145 of 2010 before this Court. This Court disposed of both the revisions by remanding the Rent control appeals to the Rent Control court to take a decision on the question whether the Rent Control Petitions are liable to be rejected under the first proviso to Sub-Section (3) of Section 11. This Court permitted both sides to adduce documentary evidence including in the form of commissioner's report. After remand, the landlords took out a commission. The commissioner submitted a report to the effect that the first floor portion of the petition schedule rooms is already under the occupation of the 5th respondent who is conducting plastic business therein. The report was also to the effect that the other rooms pointed out by the tenants to be under the vacant possession of the landlord are not suitable for the conduct of the proposed fast-food business. The Appellate Authority accepted the commissioner's report and has passed the impugned judgment ordering eviction against the revision petitioners under Sub-Section (3) of Section 11.
In these revisions various grounds have been raised assailing the judgment of the Appellate Authority. Smt.Celine Joseph, learned counsel for the revision petitioners addressed very appealing submissions before us based on those grounds. The elarned counsel submitted that finding by the appellate Authority that the first proviso to Sub-Section (3) of Section 11 does not operate against the landlords is an incorrect finding. Commissioner's report should not have been accepted, so submitted by the learned counsel.
Shri V.R.K.Kaimal, learned counsel for the respondents, per contra, would remind us of the limits of our jurisdiction under Section 20 of the Act. According to the learned counsel within the contours of our attenuated jurisdiction under Section 20, there is no warrant for interfering with the judgment of the Appellate Authority which is founded on the basis of evidence. The learned counsel pointed out that on all other issues such as bona fides of the need, tenants' eligibility for protection to the second proviso etc., this court by common order in R.C.P.Nos.144 & 145 of 2010 had taken decision in favour of the landlords. The remand was only for the purpose of deciding whether the first proviso to Sub-Section (3) of Section 11 will apply.
We have given our anxious consideration to the rival submissions addressed at the Bar. We remind ourselves of the limits of our jurisdiction under Section 20 of the Act. We do not find any warrant interfering with the judgment of the Appellate Authority. As rightly submitted by Mr.V.R.K.Kaimal, it was for the limited purpose to examining whether the first proviso to Sub-Section (3) of Section 11 will stand in the way of eviction order being passed in favour of the landlords that this Court passed the order of remand . Advocate Commissioner was deputed by the court to conduct a local inspection as to whether there is any substance in the contention of the tenants that the landlords are having vacant possession of buildings of their own so that such buildings can be utilised for accomplishing the need projected in the R.C.P. he landlords. The Advocate Commisisoner's report w as fairly in favour of the landlords. The learned appellate Authority In our view was justified in accepting the commissioner's report.
The result of the above discussion that there is no warrant for interfering with the judgment of the Appellate Authority. The R.C.Rs. will stand dismissed.
When we made our decision known to Smt.Celine Joseph the counsel for the revision petitioners, she requested that at least two years time be grnted to the revision petitioners fo9r surrendering the premises. This request is opposed tooth and nail by Shri V.R.K.Kaimla, learned counsel for the respondents. However, we feel that the revision petioners can be granted time till 31/12/2012 for surrendering the premises subject to the conditions that with effect from 1/2/2012 the revision petitioners will pay occupational charges at the rate of Rs.1200/- each per mensem. The Execution court is, therefore, directed to keep in abeyance the proceedings for delivery subject to the following conditions:
The Revision petitioners shall file affidavit before the Execution Court or the Rent Control Court as the case may be undertaking to give peaceful p surrender of the buildings on or before 31/12/2012 and undertaking further that occupational charges will be paid at the rate of Rs.1200/- each per mensem. We make it clear that the revision petitioners will g et time as allowed above only if they file affidavit and honour the undertakings therein. 1256
A woman, fish monger b y avocation is aggrieved by the quantum of compensation awarded to her by the Motor Accidents claimks Tribunal, thalassery for the injuriesi which she sustained in a road traffic accident. Details of the injuries sustained by her have been stated correctly in paragraph 14 of the award of the Tribunal. The Tribunal awarded a total amount of Rs.48,400/- to the appellant under various heads. In this appeal it is urged that the Tribunal should have taken at least 2500/- as the monthly income of the appellant and the compensation towards loss of earning clalculated on that basis. It is urged that the compensation awarde d for pain and suffering, transportation charges etc. are inadequate. We have heard the submissions of learned counsel for the appellant and the leaned standing counsel for the Insurance company. We have carefully gone through the award passed by the Tribunal. We are of the view that there are elements of genuineness in the grievance foisted by the appellant that she has not been awarded adequate compensation on all heads. We are inclined to refix the monthly income of the appellalnt notionally at Rs.2,000/-. This means that towards disability compensation, the appellant will become eligible for a further amount of Rs.2640/-. We award to the appellant so much amount under that head. Naturally, compensation towards loss of earnings must go up. We are of the view that the appellant should have been given compensation for loss of earnings Rs.3,000/-. This means that the appellant will become eligible for Rs.3,000/- more towards loss of earnings. We award to the appellant so much amount under that head. The elarned Tribunal awarded Rs.2,000/- towards pain and suffering is inadequate. We award Rs.2,000/- more towards pain and suffering. Towards loss of amenities, the appellant ought to be awa rded Rs.2000/- more . We award Rs.2,000/- more towards o loss of amenities. We are of the view that towards future treatment, towards transportation charges etc. the appellant can be awarded Rs..2,000/- more. We award to the appellant so much amount under that head. Thus in toto we award to the appellant Rs.12,140/- as additional compensation apart from the amount awarded by the Tribunal. This amount will carry interest at the rate awarded by the Tribunal.
The appeal is allowed in part. No order as to costs. Rcr The tenants are the revision petitioners in this revision under Section 20 of Kerala Buildings (Lease & Rent Control) Act 2 of 1965. They challenged the judgment of the Rent Control Appellate Authority reversing the finding of the Rent Control Court that the Rent Control petition is not maintainable for the reason that the original tenancy has been split up and the petitioner is seeking partial eviction in respect of the premises which had been originally let out. The respondent is the landlord and the revision petitioners are the tenants being the successors in interest of one Mammu, the original tenant was the husband of the first revision petitioner and the father of the other revision petitioners. According to the revision petitioners, the original landlady leased out to the petition schedule building along with the adjacent building to late Mammu as per a cooli chit dated 23/1/1970 on a monthly rent of Rs.145/- which was later enhanced to Rs.170/-. The respondent-landlord filed Rent Control Petition alleging that the petition schedule building was gifted to him by Smt. Shereefa Beevi while the adjacent building covered by the cooli chit was gifted to his brother. Eviction was sought for by the respondent on various grounds such as Section 11(2)
(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Act. The Rent Control Court came to the conclusion that as the original lease was in respect of not only the petition schedule room but also the adjacent room, a splitting up of the tenancy by Shereefa Beevi through the gift deed is not permissible in law and hence the very Rent Control Petition is not maintainable. On that reason, the Rent Control Petition was dismissed by the Rent Control Court without adverting merits of the eviction grounds.
Respondent preferred R.C.A.No.109/2001 before the Rent Control Appellate Authority, Thalassery. The learned appellate Authority relied on the judgment of a Division Bench of this court in Mar Apraeme Kuri Company v. Dix [20040(1)K.L.T.678] and took the view that Section 109 of the Transfer of Property Act provides a statutory exception to the Rule that a landlord cannot split up unity and integrity of the tenanancy and recover possession of a part of the demised premises from the tenant. Following the above judgment to which one among us (Pius C.Kuriakose,J.) is party, it was held that as there is no dispute regarding the identity of the portion assigned to the respondent(landlord) and as eviction ground is established under Section 11. The splitting up made by the original landlord can be approved even without the consent of the tenant. Accordingly, the Rent Control Appellate Authority held that the Rent Control Petition is maintainable and allowing the Rent Control Appeal by passing an order of remand and the R.C.P.was remitted back to the Rent Control Court directing the Rent Control Court to take a decision on the merits of the eviction ground.
In this revision under Section 20, various grounds have been raised challenging the judgment of the Rent Control Appellate Authority. It is urged in the memorandum of revision that the facts of Mar Prime Kuri Co.'s case (supra) and the facts which obtained in the present case are different. In Mar Appraem Kuri Co.'s case, the tenancy was split up as ground floor and up stair portion. But in the present case, the entire building is in the ground floor itself. It is urged that the integrity of the tenancy has been split up in a manner detrimental to the interest of the tenant. It is also urged that the validity of the gift deed should have gone into by the appellate authority.
We have heard submissions of Sri Muhammed Mustaq, learned counsel for the revision petitioner and Shri P.M.Pareed, learned counsel for the respondent. Shri Muhammed Mustaq would draw our attention to the judgment of a subsequent Division Bench of this Court in Antony v. Kesavan[2007(1)K.L.T. 740]. According to Mr. Muhammed Mustaq, it has been very clearly held in that decision that in the absence of a statutory provision, a single indivisible contract of tenancy cannot be split up and also that splitting up of tenancy is not contemplated under Kerala Buildings Rent Control Act and further that there is no provision in the Act for granting partial eviction of the premises. According to Mr. Muhammed Mustaq, the subsequent decision rendered by a Co-ordinate Bench is to be followed and the judgment in Mar Appraem Kuri Co.Ltd. v. Dix(supra) cannot have any application.
Mr.Muhammed Mustaq would further submit that even if it is assumed that he judgment in Antony v. Kesavan (supra) is a judgment rendered per incurium as the same was rendered without reference to the judgment in Mar Appraem Kuri Co.'s case(supra), then also the splitting up of the tenant even if permissible under Section 109 can only be subject to Section 108 ( c) of the Transfer of Property Act. According to Mr. Muhammed Mustaq, under Section 108(c), a splitting up which will result in interpretation of the enjoyment of the lease hold for the purpose for which the lease was given cannot be permitted. Mr.Muhammed Mustaq requested that the Rent Control Court be directed to consider whether splitting up of tenancy in the present case has not resulted in interpretation of the enjoyment of the lease by the revision petitioner as contemplated under Section 108) of the Transfer of Property Act.
Shri P.M.Pareed, learned counsel for respondent would support the impugned judgment of the Appellate Authority on the reason stated in that judgment. According to Pareed, the judgment in Antony's (supra) which has been rendered without referring to the judgment in Mar Appraem Kuri Co.'s case rendered by a Co-ordinate Bench is rendered per incurium and will not have any probative force. Mr. Pareed also rendered to a still subsequent judgment rendered by another Division Bench in K. George v. Thankamma Varghese[CDJ 2009 Ker HC 767] authored by one among us (Pius C.Kuriakmose,J). It was submitted that the subsequent Division Bench in K.George v. Thankamma Varghese, this court noticed and followed the judgment in Mar Appraem Kuri Co.'s case.
In view of the importance of the issue involved and the apparent conflict between the views taken in Mar Appraem Kuri Co.'s case(supra), K.George v. Thankamma Varghese(supra) and the view taken in Antony v. Kesavan(supra), we requested Sri. B.Jayasankar, Advocate to assist the court as Amicus Curiae. He readily agreed and would address us in support of the view taken by the learned appellate Authority in the impugned judgment.
Our attention was drawn by Shri Jayasankar to the judgment of the Supreme Court in Mohar Singh v. Devi Charan[A.I.R. 1988 S.C. 1365] wherein Supreme Court has held that Section 109 of the Transfer of Property Act provides statutory exception to the Rule that the landlord cannot split up unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. Our attention was drawn by Mr.Jayasankar also to the judgment of the Supreme Court in SK Sattar SK Mohd.Choudhar v. Gundappa Amabadas Bukate [(1996)6 S.C.C. 373]which takes the view that though clearly the identity and integrity of a tenancy cannot split up either in estate or in any other obligation by the unilateral act of one of the co-owners (when the entire building belonged to the co-owners in common), if all the co-owners or co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. Reference was made by Mr.Jayasankar also to the judgment of the Supreme court in Miss S.Sanyal v. Gian Chand[1968 AIR (SC)-0-438] also . We have considered these submissions addressed at the Bar by the learned counsel for the parties and also by the learned Amicus Curiae. The ratio of the judgment in Mar Appraem Kuri Co.'s case endorsed by another Division Bench in K.George v. Thankamma Varghese(supra) is clear and does not admit of any ambiguity. The same is that Section 109 of the Transfer of Property Act provides a statutory exception to the Rule that a single indivisible contract of tenancy cannot be split up unless there is statutory provisions to that effect or by a contract between the parties. The above statutory exception provided under Section 109 which deals with the rights of the transferee of a lessor enables such transferee of a .... Reversion to exercise all the rights of the landlord in respect of the portion of the building assigned to him. In fact it was by following the judgment of the Supreme court in Mohar Singh v. Devi Charan(A.I.R.1988 S.C.1365] that the Division Bench decided Mar Appraem Kuri Co.'s case. It was held in Mar Appraem Kuri Co.'s case thus:
On producing the tenanted premises unity and integrity of the estate could be split up and the assignee landlord could seek eviction on the available ground under Section 11 of the Act. The assignee however has to show the asigne portion is in a state of being identified and partial eviction is possible on facts. There is no need for the consent of the tenant in ....
After referring to the entire gamut of the case law pertaining to the issue that it was held in Mar Appraem Kuri's case. The original tenancy pertaining to two different identifiable rooms and that the petition schedule building is one of those two rooms is evident and is not disputed. The principles laid down in Mar Appraem Kuri Co.'s case squarely apply to the facts of the present case. Subsequent Bench decision in Antony v. Kesavan has been rendered without reference to the earlier Bench decision in Mar appraem Kuri Co.'s case. It is clear to our mind that the decision in antonym v. Kesavan has been rendered per incurium and cannot be binding on the learned appellate Authority. We shall now consider the arguments of Mr.Muhammed Mustaq founded on Section 108) of the Transfer of Property Act. Section 108 A deals with the rights and liabilities of the lessor and Section 108 B deals with rights and liabilities of the lessee. Section 108(c ) which comes under A provides the lessor shall be deemed to contract with the lessee then if the later pays the rent reserved by the lease and performed the contract binding, but the lessee he may hold the property during the time limited by the lese without interruption. It is also provided that the benefit of such contract shall be ....to go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. The argument of Mr.Muhammed Mustaq was that a splitting up which is permitted under Section 109 shall not affect the lesseee's right to hold the property during the time limited by the lease without interruption. When we ask Mr.Muhammed Mustaq to expatiate he submitted that it has to be ensured that even after the splitting up the lessee is able to carry on the activities which he would otherwise carrying on in the original building uninterruptedly. For several reasons, we are not impressed by the argument advanced by Mr.Muhammed Mustaq in the above line.
On going through the detailed statement of objections filed by the revision petitioners it is seen that though they have described the splitting up of the tenancy as a dubious act and they have even challenged the maintainability of the Rent Control petition on the reason that the tenancy has been split up, they do not contend even for a moment that because of the above splitting up, it has become possible for them to carry on their business. We also do not think that Section 108(c) guarantees to the tenant the right to continue the same business originally started by him in the premises to the same extent so far as we can see Section 108( c) guarantees to the tenant, the right to hold the lease property till the period of lease is over. There is no case for the revision petitioners that the period prescribed by the original cooli chit has not expired. Obviously, the revision petitioners are continuing tenancy from month to month, they are sought to be evicted in terms of Section 11 of the Act which in the present case is the law which governs the liability of the revision petitioners to be evicted.
The result of the above discussion is that we do not find any infirmity about the judgment of the appellate Authority. We confirm the same and dismiss the R.C.R., however without any order as to costs.
1933
The legal heirs of a jeep driver who was a bachelor who lost his life in a road traffic accident being his parents are aggrieved by the quantum of compensation awarded to them by the Motor Accidents Claims Tribunal. The learned Tribunal awarded a total amount of Rs.1,52,000/- to the appellants out of which Rs.80,000/- was awarded as dependency compensation. The claim of the appellants was that their son, the deceased was drawing a monthly income of Rs.6,000/-. But the appellants did not produce any evidence to prove the monthly income. Accordingly, the learned Subordinate Judge took the monthly income of the deceased notionally as Rs.2000/- deducting 1/3rd towards his personal expenditure and arrived at the dependency compensation in the above manner. Apart from dependency compensation, the learned Tribunal has awarded compensation towards loss of love and affection, funeral expenses and other conventional heads of compensation.
2. In this appeal, various grounds have been raised assailing the award of the Tribunal. Even though Shri T.C.Suresh Menon, learned counsel for the appellants addressed arguments before us based on all those grounds, one arguments most seriously was that if the application was one under Section 163 A, the appellants would have been awarded Rs.2,72,000/-. Reliance was placed on the judgment of the Supreme Court in Reshma Kumari & Others.v. Madan Mohan & Another 2009..... .. and also upon two Division Bench of this court in Sumathikutty v.
Manoj [2011(4)K.L.T.304] and Sreedevi v. K.S.R.T.C. [2011(3)K.L.T.716]. It was argued that the compensation to be awarded to the appellants cannot be less than Rs.2,72,000/-. Learned counsel also argued that the multiplicand to be adopted for the purpose of arriving dependency compensation was Rs.6,000/- and not Rs.2,000/-. He also argued that the compensation awarded towards loss of love and affection, pain and suffering are all inadequate.
All the submissions of Sri Suresh Menon were very stiffly resisted by the learned standing counsel for the Insurance company. According to the learned standing counsel, the appellants had an option to convert their application it was under Section 166 to one under Section 163A. Having not exercised that option, it is too late in the day for the appellants, they should be awarded compensation in terms of Section 163 A. Learned Standing counsel would distinguish the decision cited at the Bar.
3. We have given our anxious considerations to the rival submissions addressed at the Bar. We have kept in mind the ratio emerging from various decisions cited at the Bar. We are unable to accept the argument of Sri Suresh Menon that the Supreme Court has laid down so many words that in all cases under Section 166, the compensation to be awarded should not be less than but what is awardable as the case be under Section 163 A. The Supreme Court has only indicated that the total compensation to be awarded at the case under Section 163 A should also be kept in mind by the Tribunal while the application under Section 166 are being considered. We keep in mind the ratio which correctly emerges on the judgment of the Supreme Court and treat the application as one under Section 166. The claim of the appellants was that the deceased was drawing a monthly income of Rs.6000/-. The learned Tribunal in the absence of any documents to prove the monthly income of the deceased to take the income as Rs.2,000/- only. According to us, having regard to the admitted fact that the deceased was a jeep driver, the monthly income of the deceased would have been taken as Rs.3500/-. Taking the monthly income of the deceased is 3500/- and re-computing the dependency compensation that way and the appellants become entitled for Rs.60,000/- more towards the dependency compensation, we award to the appellants Rs.60,000/- more as dependency compensation. We are of the view that this is a case where some compensation could have been awarded towards loss of estate.
Notwithstanding the fact that the deceased was unmarried and could have got married in future, we award to the appellants Rs.5000/- towards loss of estate. It is seen from the award that the appellants' claim only Rs.25000/- towards loss of love and affection and the Tribunal awarded Rs.25,000/- itself. But it appears that the fact that the deceased was only son of the appellants was not taken into account by the Tribunal. We take that also into account and award to the appellants Rs.5,000/- more as compensation for love and affection. Thus in total we award to the appellants Rs.70,000/- more what is awarded by the Tribunal. This amount will carry interest at the rate of 7% per annum which is the rate awarded by the Tribunal.
The appeal is allowed in part. No order as to costs. RCR 31 Under challenge in this revision filed by the tenant is the judgment of the Rent control appellate authority confirming the order of eviction passed by the Rent Control Court under sub-section (3) of Section 11 of Act 2 of kerala Buildings (Lease & Rent control) Act, 1965. Even though the landlord had invoked other grounds also for evicting the revision petitioner, the statutory authorities declined eviction on all grounds other than sub-section (3) of Section 11. We therefore need be concerned in this revision only with the correctness of the eviction order passed under sub-section (3) of Section 11.
The need projected by the landlord was that the building is needed bona fide for occupation by his dependent son so that the son can conduct stationary business. though the bona fides of the need was disputed and the tenant contended that he is entitled for the protection of the Second proviso and the tenant also contended that the revision petition was liable to be rejected by virtue of the first proviso to Section 11(3) of the Act. The Rent Control court on evaluating the evidence adduced by the parties which included the oral testimony of the dependent son as PW1 would come to the conclusion that the need is bona fide. The court also came to the conclusion that the revision control petition was not liable to fail by virtue of either the first proviso or the second proviso of sub-section (3) of Section 11. Even though T....he revision petitioner carried the matter in appeal to the Appelate Authority and the appellate Authority made a thorough reappraisal of the evidence, the appellate Authority concurred with the Rent control court on all relevant issues. Accordingly, the appeal was dismissed confirming the order of eviction passed.
In this revision various grounds have been raised challenging the order of eviction concurrently passed against the revision petitioner under sub-section (3) of Section 11. Learned counsel for the revision petitioner would address very persuasive and appealing submissions before us based on the various grounds raised. It was argued that the appreciation of the evidence by the two authorities has been irregular and improper and this has resulted in serious prejudice to the revision petitioner. It was argued that the statutory authorities who declined eviction which was sought for under the other grounds should have declined eviction under sub-section (3) of Section 11 also.
We have given our anxious considerations to the rival submissions made before us by the learned counsel for the revision petitioner. We have carefully gone through the order of the Rent Control court and we have scanned the judgment of the Appellate Authority. We remind ourselves of the well delineated contours of our revisional jurisdiction under Section 20 of the Act. The only question which arises for decision is whether there is warrant for interference with the decision of the Rent Control Court and the Appellate Authority the order of eviction under sub- section (3) of Section 11. It is very clear to our mind that the above question can be answered only in favour of the respondent. It is seen from the judgment of the Appellate Authority that the oral evidence which was given by PW1, de facto claimant was found inspiring by the Appellate Authority also. We also find that the finding of the rent control petition is not liable to fail by virtue of the first and second proviso to sub-section (3) of Section 11 are findings entered on the basis of the evidence available on record and keeping in mind judicial precedents which governed. In short, we do not find any irregularity, illegality or impropriety as envisaged by Section 20 for justifying interference with the judgment of the Appellate Authority. The Revision necessarily has to fail and will stand dismissed.
After pronouncement of this order, a fervent appeal is made by the learned counsel for the revision petitioner that the revision petitioner be granted at least 1 = years time to surrender the premises. It was submitted that the revision petitioner has already reached twilight stage of his life and it will be extremely difficult for him to find out another building at this time of his life.
Having regard to the above submission, issue notice to the respondent by speed post to determine the extend of time to be given to the revision petitioner to surrender the building.
Post after service of notice.
28
The claimant is in appeal. His property in Sasthamkotta village was acquired for widening of the road in Student Centre-LMS to Sasthamangalam at the in stance of TRIDA. The acquisition is pursuant to Section 4(1) notification published on 2/3/2005. The Land Acquisition Officer awarded the land value at the rate of Rs.3,37,155/- per Are. The Reference Court under the impugned judgment refixed the land value at Rs.4,21,443/- per Are. Having considered the submissions addressed before us by Mr. Thaliyal Gopakumar, learned counsel for the appellant, Shri C.R. Shyam Kumar, learned Senior Government Pleader and the learned Standing Counsel for TRIDA. We find force in the submissions of Shri Thaliyal Gopakumar that the issue raised by the appellant in this appeal is covered by the judgment of this Court in L.a.a.No.1096/2010. We find under that judgment the value of the identical land acquired for the same purpose pursuant to the same notification has been refixed at Rs.18lakhs per Are. Following that judgment, we allow this appeal and refix the land value at Rs.18 lakhs per Are. The appellant will be entitled to all statutory benefits.... Decree copy will be issued....
35/12
Claimant is the appellant. His land together with portion of a building was acquired for the purpose of widening of the M.C.Road. The property was in Ettumanoor village and was situated adjacent to the Mahadeva Temple at Ettumanoor. There were other cases also and the Land Acquisition Officer included the properties acquired for the same purpose in category-A, B &C . The appellant's property included in category B and he zwzrded the value at the rate of Rs.1,75,778/- per Are. Even though several documents were produced by the appellants to support the appellant's claim for land value at the rate of Rs.2,50,000/- per Are (Rs.15 lakhs per cent).
The learned Subordinate Judge did not become inclined to place reliance on any of the documents produced by the appellant. Finally relying on the basis document themselves, the learned Subordinate Judge would refix the land value at Rs.1,53,334/- per Are. Thus awarding to the appellant 20% more than what was awarded by the Land Acquisition Officer. For the building portion which existed on the property under acquisition, the Land Acquisition Officer awarded Rs.1,28,019/-. Before the Reference Court, the appellant took out a commission who valued the building at Rs.6,53,600/-. Apart from the building value, the appellant had a further claim for strengthening the portions of his building not under acquisition should be awarded substantial amounts, it should be awarded Rs.4,70,000/-. He also claimed that towards charges for demolition of the acquired building, he should be awarded Rs.1,4,5,000/-. Under the impugned award, the learned Subordinate Judge would accept the recommendations of the Commissioner regarding the value of the building to a substantial extent and the appellant was awarded enhanced compensation as already indicated. Towards charges for strengthening the unacquired building, the learned subordinate Judge awarded Rs.1,80,000/-(this amount is awarded obviously under clause fourthly of Section 23 towards injurious affection). No compensation was awarded for demolition of the acquired building for the reason that the demolition and removal of the acquired building is the worry of the Requisitioning Authority and the Government.
In this appeal, various grounds are raised challenging the adequacy of the compensation awarded by the learned Subordinate Judge under various grounds. Mr.Sathish inan, learned counsel for the appellant addressed submissions based on all grounds. Accoridn to Mr.Sathish Ninan,the award of the learned subordinate Judge in terms of land value, building value, demolition charges and the expenditure for strengthening the unacquired building all are inadequate.
Shri C.R.shyam Kumar, learned Senior Government Pleader per contra submitted that the appellant cannot have any legitimate grievance regarding the adequacy of the compensation awarded. The learned Subordinate Judge was very liberal when he came to awarding enhanced comepsnation.
We have given our anxious considerations addressed at the bar and we have made a survey of the evidence on the basis of the copies of the depositions and documents which were placed before us by the learned counsel for the appellant. We shall first deal with the question of the correct market value to be awarded to the appellant's property. We are not in a position to agree with the learned counsel for the appellants that the appellants' property should have been included in category A. According to us, there was justification for the Land Acquisiton Officer in categorizing the properties under acquisition into more than one category. At the same time, we feel that the awarding officer did not maintain the correct ratio between values of the properties included by him in the different categories. We are in agreement with the learned Subordinate Judge that none of the documents produced by the appellant was relevant for determining the correct market value of the properties under acquisition. Ultimately, the learned Subordinate Jude has only the basis document. but the learned Subordinate Jude has done is to do guess work based on the basis documents and the other evidence available on record suchb as the oral evidence adduced by the parties and the recommendations of the Advocate commissioner. We are of the view that on reappreciation of the evidence and on a better assessment, the market value of the land under acquisition in this case can be reasonably fixed at Rs.1,85,278.10 which we round off to Rs.1,85,300/- per Are, which comes roughly to 45% more than the rate awarded by the Land Acquisition Officer to the appellants. Even though Mr.Sathish Ninan was very persuasive submissions based on the other claims of the appellant. Having scanned the award of the learned Subordinate Judge, we are of the view that the learned Subordinate Judge has awarded adequate compensation to the appellant under all other allowable heads. We are in complete agreement with the learned Subordinate Judge in his view that the demolition charges cannot be awarded to the appellant as it is the obligation of the Government to demolish the building which existed on the acquired property. Coming to the additional value for the building and charges necessary for strengthening the unacquired portion of the building(compensation towards injurious affection of the unacquired portion), we find that the learned Subordinate Judge has awarded reasonable compensation.
This appeal is allowed only to the extent of refixing the market value of the land under acquisition at Rs.1,85,300/- per Are. The appellants will be entitled to all statutory benefits admissible under Sections 23(2), 23(1A) and 28 of the Land Acquisition Act. The appellants will be entitled for the proportionate cost also. Decree copy will be issue only after ensuring that the full court fee paid. 341
Legal heirs of a Saw Mill Manager aged 40 years who was killed in a road traffic accident is aggrieved by the quantum of compensation awarded by the Motor Accidents Claims Tribunal. In the memorandum of appeal, it is urged that the Tribunal ought to have taken the notional income of the deceased at least at Rs.2,500/-. It is urged that the compensation awarded by the Tribunal under the other heads such as pain and suffering, loss of consortium, love and affection, funeral expenses are all inadequate.
We have heard the submissions of the standing counsel for the Insurance company and the learned counsel for the appellant.
Having considered the rival submissions very anxiously and having carefully gone through the award passed by the Tribunal, we feel that the notional income of the deceased could have been taken at Rs.2,000/- per mensem. Even though the standing counsel for the Insurance Company to the exception to the multiplier 15 adopted by the Tribunal, we are inclined to retain the multiplier at 15 itself. When dependency compensation is recalculated adopting the multiplicand of 2000/-, the appellant will become eligible for a further compensation of Rs.30,060/- as the dependency compensation. We award to the appellant so much amount as further dependency compensation. So also, we feel that the appellants have not been awarded adequate compensation under the heads of pain and suffering, loss of consortium, loss of love and affection and funeral expenses. Towards pain and suffering, we award to the appellants Rs.5,000/- more as the death occurred some three days after the accident. So also we award to the appellant Rs.10,000/- more towards the heads of loss of consortium and loss of love and affection. We award Rs.2,000/-more towards funeral expenses. Thus in toto, we award to the appellant Rs.47,060/- as additional compensation apart from the amount awarded by the Tribunal. This amount will carry interest at the rate awarded by the Tribunal.
The appeal is allowed in part, however without no order as to costs.
31/2012 Giving liberty to the appellant to move the learned Subordinate Judge himself for correction of the mistake which have crept in the impugned judgment on account of error in calculation, we dispose of this appeal without interfering with the impugned award.
32/2012 The claimants are in appeal. His property was acquired pursuant to Section 4(1)notification published on 5/2/2001 for the purpose of construction of Vizhinjam- Chappath bridge and approach road. The Land Acquisition Officer awarded land value at Rs.1,44,120/- per Are which is a garden land. Before the Reference court, the appellant produced Ext.A1 judgment reflecting a land value more than Rs.2 lakhs. Learned Subordinate Judge did not place reliance on Ext.A1 instead reliance was placed on the judgment of the same court in L.A.R.No.7/2003 and would refix the market value at Rs.48,542/- per Are. In this appeal it is urged that the market value re-dtermined by the Reference court is inadequate. The appellant has produced award in the same Reference Court in L.A.R.No.19/2003 under which it is claimed that for identical land, the same Reference Court has awarded Rs.2,47,000/-.
Shri.R.S.Kalkura, learned counsel for the appellant submitted that we rely on Ext.A1 and the judgment of the same Court inL.A.R.No.19/2003 and allow the appeal in full.
Shri C.R.Shyamkumar, learned Government Pleader does not agree. According to the learned Senior Government Pleader, the appellant did not adduce any oral evidence. The appellant never took out a commission for proving comparability and the land under acquisition and the land covered by Ext.A1. In reply Mr.Kalkura submits that the appellant was not permitted to adduce oral evidence. He requested that this court may at least be remanded the matter to the Sub Court .
Having considered the rival submissions addressed at the Bar, we feel that the appellant can be afforded an opportunity to adduce evidence by imposing proper conditions which will protect the interest of the Government in the matter. Hence, we set aside the judgment and decree under appeal and remand L.A.R.No.8/2003 before the Sub court, Neyyattinkara. The Sub court shall permit the appellant to adduce further evidence including in the form of a Commissioner's report regarding the comparability of the property under acquisition and the property covered by Ext.A1 and also the property covered by L.A.R.No.19/2003. If the appellant is desirous of adducing oral evidence, annexure such evidence also should be permitted and revised award may be passed on the basis of the entire evidence comes on record. However this order of remand will be subject to the following conditions:
Additional compensation which may be awarded to the appellant under the revised award will not carry interest under Section 28 of the L.A.A.Act during the period from 16/5/2005 till 22/7/2010.
2) The same will not carry interest also during the period from 18/2/2011 till 18/1/2012.
3)Entire court fee remitted now(1/3rd of the total) by the appellant in the memorandum of appeal will be forfeited by the appellant.
The parties shall enter appearance before the Reference court on 10/2/2012.
16 Under challenge in this revision under Section 20 of the Kerala Buildings(Lease & Rent Control)Act, 1965 filed by the tenant is the judgment of the Rent Control appellate Authority confirming the order of eviction passped by the Rent Control Court under Section 11(3) the Kerala Buildings (Lease & Rent control) Act 2 of 1965. The need projected by the landlady who is conducting textile business in her home town at Harippad is that she wants to conduct the same line of business in the petition schedule building which is situated within the limits of Kollam Corporation. The bona fides of the need was disputed by the Revision Petitioner who contended that the landlady is having other buildings of her own in her possession in Kollam Town attracting the first proviso to sub-Section 3 of Section 11 of the Act. It is also contended that at any rate the tenant is entitled for the protection of the second proviso to Sub-section 3 of Secton 11. The Rent Control Court has conducted an enquiry and in the enquiry the evidence consisted of Exts.A1 to A13 and the oral evidence of PW1, the landlady and the revision petitioner as RW1. On appreciating the evidence, the learned Rent Control Court came to the conclusion that the need projected by the landlady is a bona fide one. It is also concluded by the Rent control court that the Rent control petition was not liable to fail by virtue of sub-section 3 of Section 11. It was further concluded that the tenant was unsuccessfull in proving that he satisfies the eligibility of the protection of the second proviso to sub-section 3 of Section 11. Accordingly, the appeal filed by the revision petitioner was dismissed.
In this revision, several grounds are seen raised challenging the judgment of the Appellate Authority. Mr.K.Subhashchandra Bose, learned counsel for the revision petitioner addressed fervent submissions before us based on all grounds. Mr.Subhashchandra Bose submitted that the landlady is very successfully conducting large scale textile business at Harippad. It is highly improbable that she will give up that business and come on the way to Kollam Town, some 70 kilo metres away for starting new business. Learned counsel submitted that in Kollam Town itself, the landlady has got other vacant buildings as those other buildings are quite suitable for conducting business in the petition schedule building. The area of the petition schedule building, which size is 12" x 8", is not fit for conducting textile business, that is the area where other businesses relating to fishing and furniture are concentrated. Counsel also submitted that the findings concurrent, though the same be that tenant is not entitled for the provisions of the second proviso is a result of erroneous appreciation on the evidence on record. Lastly, the learned counsel submitted that it would be very hard if the revision petitioner who has been conducting business in the petition schedule building for the past about 40 years is evicted.
We have given our anxious considerations in all the submissions of Mr.Subhashchandra Bose and we have carefully gone through the order of the Rent control court and also through the judgment of the Appellate Authority which is impugned in this revision. On going through the judgment of the appellate authority, we find that all the contentions which are pursued before us by the revision petitioner through the learned counsel were actually considered by the appellate authority which under the statutory scheme is a final court on facts.
The findings entered by the Appellate Authority are actually findings entered on the basis of evidence oral, documentary and circumstantial which is actually available in the case. As rightly noticed by the appellate Authority and the Rent control court just because the landlady is already in textile business in Harippad, there is no embargo for her in starting the same business at Kollam which is a much bigger town with more commercial potentialities. It is not absolutely necessary that the landlady herself should conduct business in Kollam or Harippapd, She can engage employees and Managers as rightly noticed by the statutory authorities. What is more important than the oral evidence adduced by PW1, landlady was found very convincing by the two fact finding authorities, who have noticed that her credit was not shaken despite cross examination. We do not find any infirmity about the findings entered that the need projected by the landlady is a bona fide one. Coming to the contention that the landlady has other vacant buildings, it is found that the land lady evicted another tenant and perhaps that is the only building under the vacant possession of the landlady. Mr.Subhashchandra Bose was not able to tell us as to what was the ground on which the tenant of that building was evicted. Even if that building has been evicted on the ground under sub-section (3) of Section 11 and if that building is not being utilized for accomplishing the need which has been projected in that case, it is open to the tenant in that case to invoke the provisions of Sub-Section (3) of Section 11.
Coming to the concurrent findings entered against the revision petitioner in the context of the second proviso to Sub-Section (3) of Section 11, we are of the view that the burden of proof as settled by the Judgment of the Supreme Court in Kunhamma v. Akkali Purushothaman [2007(3) K.L.T.99] and the decision of the Full Bench of this Court in Francis v. Sreedevi Varassiar[2003(2)K.L.T.230], the findings concurrently entered by the two authorities in the context of the second proviso cannot be said to be faulty. Necessarily the revision will have to fail and the same will stand dismissed.
When our decision was made known to Mr.Subhashchandra Bose, the learned counsel for the revision petitioner, he requested that a minimum period of 18 months be granted to the revision petitioner for surrendering the premises. Even though we find justification for granting reasonable time, we are not inclined to grant the time sought for without issuing notice to the respondent/landlady. Hence, issue notice to the respondent to determine the exact time to be given to the revision petitioner for surrendering the premises.
Post after service of notice.
738 The claimant is the appellant. His property in Eloor village was acquired for the formation of National Highway connectivity...This was pursuant to Section 4(1)notification published on .. The Land Acquisition officer awarded the land value at the rate of Rs.1,34,275/- per Are. On evaluating the evidence which was adduced by the parties, the Reference Court would refix the land value at Rs.2,36,925/- per Are. In this appeal the g rounds mainly raised is that the market value refixed by the Reference court is inadequate and for persons who had adopted IVLTS scheme, the market value was fixed as more than two times the rate presently fixed by the Reference Court. We have heard the learned counsel for the appellant Shri.T.H.Abdul Aziz and Shri Alosious Thomas, Senior Government Plealder. According to Abdul Aziz, what is awarded is quite inadequate. According to Mr. Alosious Thomas, the appellant cannot aspire for more than what is awarded by the Reference Court. They have actually been awarded the maximum that can be awarded on the basis of the documents relied on by the Reference Court.
We have considered the rival submissions addressed at the bar and we notice that one aspect of the matter that the requisitioning authority, Cochin Port Trust is not seen made a party either before the Reference Court or in this appeal. According to us, it is necessary in view of the judgment of this Court in Steel Authority of India's case and various judgments of the Supreme court that the requisitioning Authority at whose instance the acquisition is made ought to have been made a party. On that reason, we are inclined to interfere. We set aside the judgment and decree under appeal and remand L.A.R.No. 199/2008 to the Additional Sub Court, North Parur. The learned Subordinate Judge is directed to implead Cochin Port Trust, the Requisitioning Authority for this acquisition as an additional respondent in the L.A.R.case. After impleading the Cochin Port Trust, notice will be issued to them and thereafter all parties , viz. the Claimant, the Government as well as the Requisitioning Authority should be afforded opportunity to adduce further evidence in support of the rival contentions. The learned subordinate Judge is directed to pass a revised order on the basis of the entire evidence comes on record. The learned subordinate Judge will do the needful in compliance with these directions at the earliest. The section will not refund the court fee(1/3rd only) presently remitted by the appellant.
382 105
Having regard to the view taken by this Court in other cases including L.A.A.Nos.12/2009 and 186/2009, we do not find any warrant for interfering with the impugned award under which the value of the property in Cheruvakkal village acquired for construction of four line road from Ullur Junction to Akkulam is refixed at Rs.1,56,800/-. The appeal is, therefore, dismissed, however without order as to costs.
386
A 30 year old skilled mechanic, who sustained serious injuries , namely deep lacerated injury........ and whose permanent disability was assessed by a Doctor who examined by him as 10% is aggrieved by the quantum of compensation awarded by Motor Accidents Claims Tribunal. It is urged in the memorandum of appeal; that compensation warded by the Tribunal under various heads is quite inadequate. It is urged specifically that the income certificate which reveals that the monthly income of Rs.4500/- should have been taken into ccount and the learned Tribunal was not justified in taking a notional income of R.2,000/- on lyy. It is urged that compensation awarded under other heads such as pain and suffering, loss of amenities and pleasures of life, permanent disability etc. is inadequate. It is urged that the court below ought to have taken the percentage of permanent disability sufufered by the appellant to be 10%.
We have heard the submissions of Sri.a.N.Santhosh, learned counsel for the appellant and the learned standing counsel for the Insurance company. We have carefully gone through the award. We are of the view that the appellant has not been awarded adequate compensation under other heads. We find force in the submission of the learned counsel for the appellant that his monthly income at Rs.12,000/- taken is too low. WE take into account the fact that he is a skilled mechanic and refixed the monthly income of the appellant at Rs.3,000/-. We also find that the learned Tribunal should have taken the percentage of permanent disability sustained by the appellant at 8%. Thus the disability compensation and the compensation under the loss of earning will go on. When reworked the disability compensation will stand refixed at Rs.48,960/- which means that towards that head the appellant will become eligible for further amount of Rs.28,560/-. Naturally, the compensation under the head of loss of earningswill have to be increased by Rs.2,000/- more. We award to the appellant Rs.2,000/- more under that count. Towards pain and suffering, we are of the view that the appellant is ought to be given Rs.5,000/- moroe. We award rs.5,000/- more to the appellant under that count. Towards the head of loss of amenities and pleasures of life, the appellant ought to be awarded Rs.54,000/- more. We award Rs.5,000/- to the appellant. We are of the view that having regard to the nature of the injuries sustained by the appellant, he will require future treatments. Towards the treatment, a lump sum amount of Rs.10,000/- is awarded. Thus in total amount of compensation a warded to the appellant at Rs.50,560/- apart from the amount awarded by the Tribunal. This amount will carry interest at the rate awarded by the Tribunal. The appeal is allowed partly. No order as to costs.
304 Even though service of notice is complete on the respondents including the first respondent claimant before the Motor Accident claims Tribunal, there is no appearance for any of the respondents. The ground which is prominently urged in this memorandum of appeal is that the Tribunal directed the appellant insurance company to pay the compensation amount and recover the same from the second respondent-insured. Arguments of Mr.George Cherian, learned counsel for the appellant-insurance company was that the policy in question was an Act only policy. When it is found that the policy in question was an Act only policy, the direction to the Insurance Company to pay the amount and recover the same from the second respondent/owner was not at all warranted in this case where the injured was a pillion rider who is not covered by the policy at all. This is a case where the policy in question does not cover the injured. Hence, the Insurance company is entitled for complete exoneration. We find merit in the submission of George Cherian. It is also noticed that the learned counsel's submission are not resisted by anybody of the Bar.
We allow this appeal and modify the award of the Tribunal by deleting the direction to the Insurance company to pay the amount and recover the same from the 2nd respondent.
1248
The prominent ground on which the Insurance company has challenged the impugned award under which the company has been made liable to pay compensation to the claimants before the Motor Accidents claims Tribunal is that the policy in question was an Act only policy which does not cover the injured who was a pillion rider. We called for the record in view of the submission of the learned counsel for the appellant, We have carefully perused Ext.P1. We find that the same is a package policy and not an Act only policy as contended by the appellant company. We do not find any warrant for interference in the award of the company. The appeal fails and it will stand dismissed. 16/12 The claimants are in appeal. Their property in Petta Village was acquired for the purpose of the International airport, Thiruvananthapuram. The Land Acquisition Officer awarded the land value at the rate of Rs.97,206/- per Are which was enhanced by the Reference Court at Rs.1,31,228/-. Our attention was drawn by Mr. Thaliyath Gopakumar to the judgment of this Court in L.A.A..No.485/2010. We find that for an identical property for the same purpose, this court has refixed the land value at Rs.9 lakhs per Are. Sri Alosious Thomas, Senior government Pleader would fairly conceded before us that the judgment in L.A.A.No.484/2010 has attained finality. Under the above circumstances, We allow the appeal and refix the market value at Rs.9 lakhs per Are subject to the conditions imposed by this Court in C.M.Appln.No.. The appellant will be entitled for all statutory benefits SIBKECT TPO THE COPNDITIONS . The decree copy will be issued to the appellant only a after ensuring the true copy ..... and also that THE conditions in C.M. Appln. PARTIES ARE DIRECTED TO SUFFER THEIR RESPECTIVE COOOOSTS. 765
The claimant is in appeal. His property in .. was acquired for the development of NH 17. The property was included in c ategory-1 that is the property existing National Highway. The Land Acquisition officer awarded the land value at Rs.1,08,800/- per Are. The Reference Court on evaluating the evidence adduced by the parties refixed the land value at the rate of Rs.1,49,424/- per ARE. Our attention is drawn by Mr.Abdul Jabbar Panadan through the judgment of this Court in L.A.A.Nos.885/2010 and 923/10, this Court refixed the maximum market value that can be fixed at Rs.1,77,294/- relying on those judgments.
Shri C.R.Shyamkumar, learned Government Pleader submitted that the appellant in L.A.A.1589/2009, this Court has refixed the land value at Rs.1,71,000/- per Are in a case where the Land Acquisition officer awarded the same value and requested that the appellant may not be granted more than Rs.1,71,000/- per Are.
Having considered the rival submissions addressed at the Bar, we are of the view that we should follow the decision in L.A.A.No.923/2010 which is taken by ourselves. Hence, we allow the appeal and refix the land value under acquisition at Rs.1,77,294/- per Are. The appellant will be entitled for all statutory benefits under Section 23(1)(A) and 23(2) and 28. However, while the decree is d rafted and the provision is made under Section 28, the Section will have due regard d to the conditions imposed by this court in C.M.appln... Decree copy will be issued to the appellant only after ensuring that those conditions have been complied with. Mr.Abdul Jabber,learned counsel for the appellant submitted that the appellant has not been awarded the interest on the original compensation amount awarded by the Land Acquisition officer which was paid in instalments. The appellant can seek redressal of this grievance by claiming additional amounts on this count while filing execution petition. The appeal is allowed. No order as to costs.
8
Claimants are in in appeal. Their property in Nemom Village within the limits of Thiruvananthapuram Corporation was acquired for the development of Thrikkanapuram- Poozhikkunnu Road. Under the impugned award, the Reference Court refixed the land value at Rs.1,32,827/-. Relying on various judgments, the appellants claim that the market value be refixed at Rs.3 lakhs per Are as the property is important and situated within the limits of Thiruvananthapuram City Corporation.
Shri Alosious Thomas, learned Senior Government Pleader that the appellants cannot be awarded Rs.3 lakhs per Are. He drew our attention to a judgment of this court in L.A.A.286/2011, a copy of the judgment is placed before us by him . Accoridng to him, for an identical property this court refixed the market value at Rs.2 lakhs per Are.
Having considered the rival submissions addressed at the Bar and having gone through the judgment in L.a.A.No.286/2011, we are of the view that the above judgment will follow We allow the apopeal and refix the land value at Rs.2 lakhs per Are. The appellants will be entitled for all statutory benefits. However, while the decree is d rafted and the provision is made under Section 28, the Section will have due regard d to the conditions imposed by this court in C.M.appln 17/1... Decree copy will be issued to the appellant only after ensuring that those conditions have been complied with and also that ....court fee will be payable in the appeal memo 117/11 attemted evasion of tax .......It is seen that the petitioner is a cashew factory engaged in processing and export of cashew kernels. The item seized was raw cashew nuts transported from Kolam to Alwaye in the wee hours of the night on 11/12/2004. The finding of the authorities below is that the petitioner has not engaged in purchase and sale of raw cashew nuts. In fact, in the whole year, the single transaction of sale accounted is the seized consignment. Concurrent finding of the three authorities below including the Tribunal is that but for the detention, the petitioner would not have accounted the single sale transaction made in an year. We do not find any justification to interfere with the concurrent findings of the facts based on a penalty sustained. Consequently, the Sales Tax Revision is dismissed.