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high court of orissa

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M.V. Act -accident claim = Whether the High Court is justified in reducing the compensation from Rs.10,62,000/- to Rs.8,00,000/- with 6% interest per annum?= The same has been interfered with by the High Court in the Appeal filed by the Insurance Company though it has no right to challenge the quantum of compensation as it has got limited defence as provided under Section 149(2) of the Motor Vehicles Act in the absence of permission from the Tribunal to avail the defence on behalf of the insurer as required under Section 170(b) of the Act. It is relevant to note that Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If we permit the insurer to take any other defence other than those specified in sub- section (2) of Section 149, it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included.= In our considered view the Tribunal and the High Court have erred in not following the principles laid down in Sarla Verma’ case (supra) in fixing the monthly income at Rs.12,000/- in the absence of documentary evidence having regard to the fact that the deceased was employed as Lecturer in Odisha College of Homeopathy and Research, Sambalpur and she also had private practice. The Tribunal in exercise of its original jurisdiction has taken Rs.12,000/- as her monthly income and has deducted 1/3rd out of the monthly salary towards her personal expenses and computed the compensation both on the loss of dependency as well as the conventional heads and has awarded Rs.10,62,000/-. The same should not have been interfered with by the High Court in exercise of its appellate jurisdiction. Hence, the impugned judgment, award and order passed in the Misc. Case no. 385/2011 in M.A.C.A No. 579/2007 is required to be interfered with. So also the order dated 10.3.2011 in Misc. Case No.385 of 2011 modifying the earlier direction issued by the High Court to deposit 60% of the awarded amount in any of the Nationalized Bank, is required to be interfered with. Accordingly, both the impugned judgment, award and orders dated 24.2.2011 and 10.03.2011 are hereby set aside by allowing the civil appeals. Having regard to the facts, circumstances and the finding recorded by the Tribunal in its judgment, we restore the same in awarding compensation in favour of the appellants at Rs.10,62,000/- with interest at the rate of 6% per annum.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40622 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5373-5375 OF 2013 (Arising out of SLP (C) Nos. 7407-7409 of 2012) REKHA JAIN & ANR. … APPELLANTS VS. NATIONAL INSURANCE CO.LTD. … RESPONDENT         J U D G M E N T   V. Gopala Gowda, J. … Continue reading

The first respondent, filed an Election Petition under Section 31 read with Section 34 of the Gram Panchayat Act, 1964 (for the sake of convenience it is called “the Act”), on the ground that the appellant herein was not eligible to contest the election in view of Section 11(b) of the Act which declares that no member of `Gram Sasan’ (a defined expression under Section 2(h) of the ActI) shall be eligible to contest for the post of Sarpanch if he has not attained the age of 21 years.= It was held in Robins Vs. National Trust & Co. Ltd., 1927 A.C. 515 – “To assert that a man who is alive was born requires no proof. The onus is not on the person making an assertion, because it is self-evident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion.” Since the first respondent failed to discharge the burden cast upon him, the election petition must fail.=An admission must be clear and unambiguous in order that such an admission should relieve the opponent of the burden of proof of the fact said to have been admitted.=It can be seen from the above-extracted portion of the evidence of the appellant that the appellant stated that she was 13 year old when she took admission in the High School (obviously Basudev High School) and the admission, as we have already noticed from the evidence of PW.2, was on 11.7.1998. Deducting 13 years from that date would place the year of birth of the appellant in 1985. It is not clear as to the material on the basis of which the Division Bench recorded that the admission of the appellant in the Panchayat Upper Primary School was on 10.1.1996. We assume for the sake of argument that there is some basis on record for the finding that the appellant took admission in the Upper Primary School on 10.1.1996. On her own admission she was 10 years old on that date. Then there is an 9

Reportable     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1191 OF 2012 [Arising out of SLP(C) No. 15174 of 2011]     Joshna Gouda …….Appellant Versus Brundaban Gouda & Anr. ……Respondents     J U D G M E N T   Chelameswar, J.   Leave granted.   2. This … Continue reading

Land Acquisition Act – Indisputably, for the purpose of computation of amount of compensation a large number of factors have to be taken into consideration, namely, nature and quality of land, whether irrigated or unirrigated, facilities for irrigation like existence of well, etc. presence of fruit-bearing trees, the location of the land, closeness to any road or highway, the evenness thereof whether there exists any building or structure.”

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2672 of 2004 SPL. LAND ACQUISITION OFFICER ….Appellant VERSUS MAHARANI BISWAL & ORS. ….Respondents JUDGMENT ANIL R. DAVE, J. 1. The present appeal is filed against the judgment and order dated 04.10.2001 passed by the High Court of Orissa whereby the High … Continue reading

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