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Wednesday, December 12, 2018

demolition ~ by Municipal Authority - Apex Court on Insurer's liability for that !!

The Indian market now predominantly follows the “All India Fire Tariff”. The Tariff has been subjected to revisions and amendments from time to time. During 1980s, the Fire Tariff presented bewildering demonic proportions being of big volume and too difficult even for the Insurers. During those days, there were restrictions of ‘night work’, usage of petrol / flammable material, material in open and for each of these there were restrictions by way of warranties and additional premium.

In Cricket, when the stumps are hit and dislodges at least the bails – a batsman is out bowled ~ sometimes one is cleaned – demolished .. this post is different.

The Tariff was largely simplified and released with a new look effective April 1987 when there were three variants Fire Policy A, B & C. The Standard Fire and Special Perils Policy (Material damage) which came into effect from April 2003, defines Fire as : other than destruction or damage caused to the property insured by (a) its own fermentation, natural heating or spontaneous combustion (b) its undergoing any heating or drying process (c) burning of property insured by order of any Public Authority.

The Standard Fire & special Perils Policy besides the Operative clause contains (named perils) :12 Perils; 13 General exclusions and 15 General Exclusions.

Riot, Strike & Malicious Damage (RSMD) is a named peril covered – the wording inter-alia reads :Loss of or visible physical damage or destruction by external violentmeans Directly caused to the property insured but excluding thosecaused by:

(a) total or partial cessation of work or the retarding or interruption orcessation of any process or operations or omissions of any kind.
(b) permanent or temporary dispossession resulting from confiscation,commandeering, requisition or destruction by order of theGovernment or any lawfully constituted Authority.
(c) permanent or temporary dispossession of any building or plant orunit or machinery resulting from the unlawful occupation by anyperson of such building or plant or unit or machinery or preventionof access to the same.
(d) burglary, housebreaking, theft, larceny or any such attempt or anyomission of any kind of any person (whether or not such act iscommitted in the course of a disturbance of public peace) in any
malicious act.

Of the above (b)  .. .. …  destruction by order of the Govt or any lawfully constituted Authority became the subject matter of litigation, now decided by the Supreme Court of India.   The appeal was made by the Insurer against a judgment of a Division Bench of the High Court of Jammu and Kashmir of July 2016. The High Court affirmed the decision of the Jammu and Kashmir Consumer Disputes Redressal Commission by which an insurance claim was allowed for Rs.17.28 lakhs.  The Insurer failed in their challenge of the State Commission before the High Court.  Cross-objections filed before the High Court by the insured for the grant of interest were also rejected. Hence, there are two appeals: one by the insurer and the second by the insured, against the judgment of the High Court.

The claim of the insured before the State Commission was that it owns a building known as Patel House which is situated at Akhnoor road, Jammu. It was claimed that the building was constructed in 1984 with due permission of the municipality. In 1993, additional construction was raised, it is alleged, with the permission of the municipality. According to the insured, on a notice issued under Section 229 of the Jammu and Kashmir Municipal Corporation Act 2000, he had approached the Jammu and Kashmir Special Tribunal which compounded the infraction in 1996. The Municipal Corporation initiated a demolition drive. Apprehending action against his property, the insured instituted a suit in the Court of the First Civil Subordinate Judge,Municipal Magistrate, Jammu where an ad-interim injunction was granted,restraining the Corporation from proceeding, except in accordance with law.

The Municipal Corporation demolished the front portion of the building. The Insured was carrying on a business of sanitary ware in the premises. As a result of the demolition, the insured claimed that it suffered damage in the amount of Rs.19.55 lacs.

The claim before the State Commission was founded on a policy of insurance (Standard Fire Policy)  obtained by the insured. The insurance policy contained the following exclusion:

“V. Riot, Strike, Malicious and Terrorism Damage Loss of or visible physical damage or destruction by external violent means directly caused to the property insured but
excluding those caused by:-
a) xxxx
b) Permanent or temporary dispossession resulting from confiscation, commandeering, requisition or destruction by order of the Government or any lawfully constituted Authority.”

Relying on the aforesaid exclusion, the Insurer repudiated the claim on the ground that the action of demolition was carried out by the municipal authorities and was hence by order of a lawfully constituted authority.

 The State Commission allowed the claim under the insurance policy for Rs.17.28 lakhs + litigation costs of Rs.10,000/- The State Commission opined that the order of demolition passed by the Municipal Corporation had not been brought on the record and, in its absence,the exclusion would not operate. In appeal, the High Court affirmed the view of the State Commission, holding that it was incumbent on the insurer to establish that the exclusion contained in the policy of insurance was attracted by placing on record the orders of a lawfully constituted authority by which demolition was ordered. While affirming the view of the State Commission, the High Court held that in the absence of such an order being produced on the record, the insurer was liable to indemnify the loss sustained by the insured.

Before the Apex Court, the  principal basis on which the complaint was allowed by the State Commission was  called into question with Insurer submitting that  it was not in dispute that the demolition was caused by the Municipal Corporation. To substantiate this submission, the insurer relied upon the averments contained in the consumer complaint which were extracted to be :

5) That after the constitution of the Municipal Corporation,Municipal Corporation had started demolition drive to remove the encroachment and illegal constructions.
6) …..
7) That the Municipal Corporation in spite of the injunction issued by the Court, demolished the front portion of the building which was duly compounded by the Appellate Court, in violation of the Court order and also in violation of the order already passed compounding the constructions.
8) …..
9) …..
10) That the Municipal Commissioner, Jammu without any authority and taking law into his own hands in violation of the Court order dated 10.04.2003 demolished the front portion of the building and totally damaged the Cabin fitting, display items electric systems etc without any notice to the complainants thereby causing a loss of Rs.19,55,946/-

The building and the material including Furniture and Fixture etc. were insured by the respondent for an amount of Rs. 1,23,50,000/- for which insurance covers were issued by the respondent vide policy no. 350700/11/02/00119 for the period 03.05.2002 to midnight 02.05.2003.

11) That the Commissioner, Municipality and ExecutiveOfficer to show their loyalty towards the Government in violation of Court order and fully well knowing that the complainants are owners of the land demolished the front portion of the building .. .. .. …

In his counter affidavit filed in these proceedings, the Commissioner ofthe Jammu Municipal Corporation  stated that in order to remove encroachments/projections over public premises including over footpaths, streets and drains, the Municipal Corporation issued a public notice in the daily editions of ‘Kashmir Times’ and ‘Daily Excelsior’. The notice made an appeal for the removal of projections, platforms and encroachments which were not in conformity with the building line provided by the Jammu Master Plan and Prevention of Ribbon Development Act 1953.After the period stipulated in the public notice ended, demarcations were carried out in areas where there were encroachments and the encroachers including the private respondents were directed to remove the encroachment.

Without getting in to the technicalities of the demolition, the issue agitated in the present case was the applicability of exclusion contained in the Policy.  Both the State Commission as well as the High Court were of the view that the exclusion was not attracted having due regard to the judgment of this Court in National Insurance Company v Irshad where the Court held that ‘where there is an exclusionary clause in an insurance policy, the burden lies on the insurer to establish that the exclusion is attracted. Any ambiguity must be construed in favour of the insured. Purporting to apply this principle, the State Commission and the High Court held that the insurer had failed to establish that there was an order of the Municipal Corporation for carrying out demolition and hence the exclusion was not attracted.

Apex Court, however held that -  we find merit in the submission of the insurer that there was no dispute about the fact that the demolition was carried out under the authority of the Municipal Corporation. As the averments in the consumer complaint indicate, the insured proceeded on the basis that the Municipal Corporation had carried out the work of demolition. There could be no dispute about the factual position since, as a matter of fact, the insured has instituted a suit for diverse reliefs including a challenge to the action of the Municipal Corporation. Hence the basis on which the claim was allowed is fundamentally flawed.

The essential aspect which needs to be considered is whether the exclusion was attracted. Mr Jayant Bhushan, learned senior counsel appearing on behalf of the insured submits that Clause V postulates that there must be a “destruction by order of the government or any lawfully constituted authority”. Learned counsel submits that the exclusion postulates that there must be an action in accordance with law. In this submission, an act of illegal demolition by the Municipal Corporation will not fall within the purview of the exclusion. Hence, it has been urged, that the judgment of the State Commission, as affirmed by the High Court, is correct.

On the other hand, Ms.Awantika Manohar, learned counsel appearing on behalf of the insurer has submitted that the demolition was carried out by the Municipal Corporation. This action clearly falls within the ambit of the expression “destruction by order of any lawfully constituted authority”. Learned counsel submitted that the validity of the action of the municipal authority is the subject matter of a pending suit. In determining as to whether the exclusion is attracted, what the Court must assess is whether the demolition was carried out by order of any lawfully constituted authority. The grounds of challenge in the suit are distinct from the claim under the insurance policy. Hence, once it is found that the demolition was by the order of the Municipal Corporation which is a lawfully constituted authority under the Jammu and Kashmir Municipal Corporation Act 2000, the exclusion is attracted.

We find considerable merit in the submission which has been urged on behalf of the insurer. Clause V of the insurance policy contains an exclusion,where the destruction of the property has been caused “by order of the government or any lawfully constituted authority”. The expression “by  order of” means under the authority of government or of a lawfully constituted authority. There can be no dispute about the position that the Municipal Corporation is indeed a lawfully constituted authority, being a statutory authority under the Jammu and Kashmir Municipal Corporation Act 2000.From the records as well as from the pleadings before the State Commission,there is no dispute about the fundamental position that the demolition was carried out by the Municipal Corporation. The destruction was hence by order of a lawfully constituted authority. Once this be the position, there can be no manner of doubt that the exclusion under the policy of insurance was attracted.

The position of the common law with respect to the interpretation of exclusionary clauses in insurance policies is no different. The object of the exceptions is to define with greater precision the scope of the policy by making clear what is intended to be excluded and contrasting it with what is intended to be included.Since exceptions are inserted in the policy mainly for the purpose of exempting the insurers from liability for a loss which, but for the exception, would be covered by the policy,they are construed against the insurers with the utmost strictness and it is the duty of the insurers to except their liability in clear and unambiguous terms.

The principles for construing insurance exclusions as laid down in Impact Funding Solutions Ltd v Barrington Support Services Ltd  were relied upon by the England and Wales High Court (Commercial Court) in the case of Crowden and Crowden v QBE Insurance (Europe) Ltd.  While dealing with the question of construction of insurance exclusions, Judge Peter MacDonald Eggers QC observed: … the Court must adopt an approach to the interpretation of insurance exclusions which is sensitive to their purpose and place in the insurance contract. The Court should not adopt principles of construction which are appropriate to exemption clauses - i.e. provisions which are designed to relieve a party otherwise liable for breach of contract or in tort of that liability - to the interpretation of insurance exclusions,because insurance exclusions are designed to define the scope of cover which the insurance policy is intended to afford. To this end, the Court should not automatically apply a contra proferentem approach to construction. That said, there may be occasions, where there is a genuine ambiguity in the meaning of the provision, and the effect of one of those constructions is to exclude all or most of the insurance cover which was intended to be provided. In that event, the Court would be entitled to opt for the narrower construction…”

The Court held that in the present case, there is no ambiguity in Clause V of the insurance policy.The exclusion was clear in exempting the insurer from liability for a loss arising from the destruction of property caused “by order of the government or any lawful authority.”For the above reasons, we are of the view that both the State Commission and the High Court were in error in allowing the claim under the policy of insurance. We would, accordingly, have to allow the appeal filed by the insurer, which we do by setting aside the impugned judgment of the High Court which has affirmed the decision of the State Consumer Disputes Redressal Commission. In consequence, the complaint filed by the insured before the State Commission (CC 2628/2004) shall stand dismissed.

Before concluding, we clarify that since these proceedings are confined to the claim of the insured under the insurance policy, nothing contained in this judgment shall affect the merits of the suit which has been instituted by the insured against the Municipal Corporation. The appeal filed by the insurer is allowed. The appeal filed by the insured shall stand dismissed.

With regards – S. Sampathkumar
12th Dec 2018.

Citation : Supreme Court of India : Civil Appeal no. 11885 of 2018.  New India Assurance (Appellant) Vs Rajeshwar Sharma & Others.

PS:  the final verdict is in favour of Insurer, yet am stumped by the claim, cause, turn of events and the way it was conducted.  The subject matter was demolished (by municipal authorities) – Standard Fire Policy is a ‘named perils’ policy.  The perils covered are :  1) Fire 2) Lightning 3) Explosion/ Implosion 4) Aircraft damage 5) Riot, Strike & Malicious damage 6) Storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation 7) Impact damage 8) subsidence and landslide including rockslide 9) bursting and/or overflowing of water tanks … 10) missile testing operations 11) leakage from automatic sprinkler installations and 12) bush fire. 

In a named perils policy, the onus is on the claimants to establish that a loss occurred and that it is attributable to a peril insured.  How would demolition fall within any of the 12 named perils ?  Insurance is always against fortuity ! – why should the case have been defended under an exclusion, when there appears no basic premise for the claim falling  within the ambit of the policy.

tinseldom's love with gangster movies !

The  recent launch of Amazon Prime’s gangster saga Mirzapur marked another milestone in the evolution of the Indian screen gangster. The TV series will go head-to-head with season four of Netflix’s Narcos, providing rich pickings for those wanting to see the grittier side of life outside the western world.  Telling the story of a crime dynasty ruling the town of Mirzapur in the dusty outlaw hinterland of Uttar Pradesh – a vast Indian state with more than 200 million people,  somehow touted to be plagued with violence and corruption – the show is the latest to feed India’s perennial appetite for seeing the raw underbelly of its society on the big screen and on TV.

In recent years, Anurag Kashyap made a series of bloody, hard-boiled gangster movies, including the outstanding two-part Gangs of Wasseypur – a five-and-a-half-hour epic charting the destinies of warring coal-mafias in the lawless backwaters of rural Jharkand – while Netflix launched his hugely successful Mumbai gangster series Sacred Games that delved deep into the city’s underworld of gaudy mobsters, sassy molls, crooked cops and politicians.   Tinseldom be it Hollywood or anyother wood,  has always had larger-than-life gangsters ! ~ glorifying the gory has been the passion and way of money-making of many a movie makers.   

Chi-Raq  released in  2015 is an  American musical crime drama film, directed and produced by Spike Lee and co-written by Lee and Kevin Willmott. Set in Chicago, the film focuses on the gang violence prevalent in neighborhoods on the city's south side, particularly the Englewood neighborhood.  The story is based on Aristophanes' Lysistrata, a Classical Greek comedy play in which women withhold sex (heard this dialogue in Unnal Mudiyum thambi !) and porn from their husbands as punishment for fighting in the Peloponnesian War. It was the first film to be produced by Amazon Studios, released in select theaters on in Dec 2015., Inc., doing business as Amazon is an American electronic commerce and cloud computing company based in Seattle, Washington, that was founded by Jeff Bezos on July 5, 1994. The tech giant is the largest Internet retailer in the world as measured by revenue and market capitalization, and second largest after Alibaba Group in terms of total sales. The website started as an online bookstore and later diversified to sell video downloads/streaming, MP3 downloads/streaming, audio book downloads/streaming, software, video games, electronics, apparel, furniture, food, toys, and jewelry. The company also owns a publishing arm, Amazon Publishing, a film and television studio, Amazon Studios, produces consumer electronics lines including Kindlee-readers, Fire tablets, Fire TV, and Echo devices, and is the world's largest provider of cloud infrastructure services (IaaS and PaaS) through its AWS subsidiary.

Beginning in 2013, distributes original television programs through its Amazon Video service, some of which are developed in-house by Amazon Studios. Amazon Studios is a television production distributor that is a subsidiary of Amazon. It specialized on developing television series and distributing and producing films. Content is distributed through Amazon Video, Amazon's digital video streaming service, a competitor to services like Netflix and Hulu.  In 2008, Amazon expanded into film production, producing the film The Stolen Child with 20th Century Fox. In July 2015, Amazon announced it had acquired Spike Lee's new film, Chi-Raq, as its first Amazon Original Movie.

Now something on Tamil (a Tamil serial to be precise) - On paper, Vellaraja is as exciting as Sacred Games, and that’s a compliment the former really deserves. In both these series, the existence of the primary character – about whom we hear a lot throughout - is in question. If it’s Nawazuddin Siddiqui in Sacred Games, it’s Bobby Simhaa (Deva) in Vellaraja. Both are dreaded crime kingpins, wanted for various unlawful activities. 

Directed by Guhan Senniappan, Vellaraja predominantly unfolds in a lodge where Deva seeks refuge with a large consignment of cocaine in his possession. It revolves around a cocaine heist gone wrong, corrupt police officers, a fearless lawyer willing to take on the system and much more. For a story that pretty much revolves around Deva, we’re introduced to far too many characters which really don’t make sense in the bigger picture of the story. It just feels like all the characters were brought under one roof to build suspense which then gets dragged for ten episodes.  Parvatii Nair  plays Teresa, a cop who is specially appointed to deal with the drugs situation in the city.  For those who have a fixed mindset on TV serials as soap operas of females crying, this could be a different one !

Anything on gangster life and movie will not be complete without ‘Mani Ratnam’s Nayakan’ – 1987 released Kamal starrer.  The song dance of Kuyili onboard a fishing boat with drugs was a hit.  It loosely portrayed the real-life Bombay underworld don Varadaraja Mudaliar, and sympathetically depicted the struggle of South Indians living in Bombay.   The soundtrack and the background score of the film, composed by Ilaiyaraaja were the strong points of the film.

If you can recall, the kidnap and murder of two children ‘Geeta and Sanjay Chopra’ also known as ‘Billa Ranga kidnapping’ case in 1978 hogged limelight.  The two unfortunate children  were kidnapped by two young men, Ranga Khus (Kuljeet Singh) and Billa (Jasbir Singh), who planned to demand ransom from their parents. Their plans went awry when their car was involved in a traffic accident with a public bus. They subsequently raped Geeta, murdered the children and fled the city. They were arrested on a train a few months later, tried and hanged for the crime in 1982.

Sadly, tinseldom used their names for some adverse publicity the names could generate.  In 1980 a film named ‘Billa” a Rajnikanth starrer was produced by K. Balaji and directed by R. Krishnamurthy. It was a commercial success.  In 2007, it was remade with Ajith in the lead; with Nayantara, Prabhu, Namitha in the cast.  There was another film made with Rajni in the lead, titled ‘Ranga’. That is Tamil tinseldom’s love with gangsters and criminals ..

With regards – S. Sampathkumar
12th Dec 2018.

Tuesday, December 11, 2018

MACT ~ Award higher than petition & % deduction towards personal expenses

Road traffic is ever increasing and no. of accidents too are on the increase – such accidents leave behind an indelible trail on the victims – thus MCOPs before the Motor Accident Claims Tribunals are gory details of blood split on the road and the penury of the victims.  Either the person injured in the road accident involving a motor vehicle in a public place or the family members of the deceased – follow a simple procedure in filing a Petition before the MACT claiming compensation. Though human life is priceless and cannot be valued, there has to be a methodology (that has evolved over the years) in arriving at a compensation that is fair and just. 

Motor Accident Claims Tribunals are constituted for expeditious disposal of petitions arising out of accidents caused by motor vehicles, yet there are cases of inordinate delay in their disposal due to multifarious factors.  The Motor Vehicles Act 1988 deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard.  When there is a death of a person on road out of accident involving a motor vehicle, the  measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death.

The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.

The accepted methodology in arriving at the compensation is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase.  

In the oft quoted judgment in Sarala Verma&others  Vs Delhi Transport Corporation decided in Apr 2009 by the Apex Court, it was beautifully summarised that in computing, basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:

The Honble Court held that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents is an accepted one. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased:-
-          1/3 rd of the income if the deceased was married person
-          1/2  (50%) of income if deceased was a bachelor
Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are (Sarala Verma judgment) of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be:
o   one-third (1/3) where the number of dependent family members is 2 to 3
o   one-fourth (1/4) where the number of dependant family members is 4 to 6
o   one-fifth (1/5) where the number of dependant family members exceed six.
Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. The other landmark judgment : National Insurance Vs Pranay Sethi largely accepted this view (in respect of personal deductions)

This was an appeal filed seeking further enhancement of compensation from Rs.21.53 lakhs awarded by the High Court of Kerala at Ernakulam. By the impugned judgment, the High Court enhanced the compensation from 11.83 to 21.53 lakhs.  The cause of action arose in a road accident – the victim left behind wife of 22 years and two children of 3 years and 9 months.  There was an aged father at about 90 years of age too.  Petition had been filed for 25 lakhs.  The Tribunal assessed monthly income at 12000 – deducted ½ towards personal expenses and awarded 11.83 lakhs. 

The respondent – Insurers filed an appeal and the claimants filed  cross objections seeking enhancement in compensation. The High Court of Kerala awarded an additional sum of 9.70 lakhs. While doing so, the High Court took into consideration the salary certificate of a Food centre in Doha disclosing a salary of 2500 Qatar Riyals,  equivalent to Rs.30,000 p.m.  For authentication the salary certificate was  attested/counter signed by the Assistant Consulate Officer, Embassy of India, Doha.  The Supreme Court held that in their opinion, the assessment of the income of the deceased by the High Court was just and proper.

The Supreme Court found that the overall compensation awarded was just and reasonable of all heads  (except under the head of loss of dependency); further stated that in our considered opinion, the High Court has faulted in deducting 2/3rd of the total income towards the personal expenses of the deceased, while quantifying the compensation. Taking into consideration the high cost of living at Doha, as observed by the High Court as wellas the fact that the deceased was having his wife, two minor children and aged father as dependants and as there is no other earning member in the family of the deceased, in the facts and circumstances of the case, a deduction of 40% of the salary for the personal expenses would be appropriate for the purpose of quantifying compensation.

Taking into consideration such factors including the factor of uncertainties in the job in that Country as well as uncertainty in staying back in the said country for a longer period and in the absence of any material to show as to for how many years the deceased was having contract to serve, the claimants are entitled to a total compensation of Rs.28 lakhs with interest at the rate of 8% per annum from the date of filing the claim petition till its realization.

Though the claimants had claimed a total compensation of 25 lakhs only before the Tribunal, the Apex Court altering 66% deduction, reduced it to 60% (specific to this case) and awarded a compensation @ 28 lakhs (higher than claimed) stating that there is  no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount.

The Respondents Insurers were directed to pay  within a period of two months from the date of receipt of a copy of this order.  Thus was the case disposed.

As usual, there is so much learning for everyone – more specifically for the Insurer  that  i) award can be more than the petition value ii) deduction need not be ¼; ½ ;1/5; or  2/3 .. .. it can be 40% as well !!

With regards – S. Sampathkumar
11th Dec 2018.
PS : Citation : Ramla and others ..Vs National Insurance Company Limited : Apex Court judgment : Hon’ble Mohan M Shantanagoudar  - Civil appeal NO.11495  of 2018

India wins at Adelaide ~ goes 1 up

India’s story was, to borrow a phrase, about whether they could cross the line. Theirs was the only really important line, which was to win a Test match in Australia, something Indian teams have only achieved five times in 71 years, and not at all in the past decade.  The short scorecard reads : India 250 (Pujara 123) and 307 (Pujara 71, Rahane 70, Lyon6-122) beat Australia 235 (Head 72) and 291 (S Marsh 60) by 31 runs  ~ there was much drama and happiness behind that !

With this it is 6 - Tests won by India in Australia. This win is only their third in the country in the last 35 years. Their previous two came in Perth (January 2008) and Adelaide (December 2003). The first three wins had come on successive tours of 1977-78 (two) and 1980-81. India are the only team win in Adelaide twice since 2000.   They say ‘catches win matches’ – there were so many 35 of them  in this Test, a world record. It bettered the the 34 set in Cape Town earlier this year between Australia and South Africa. All 20 wickets in the second innings of both sides were caught.

The chatterer young Rishab Pant had a World record 11 catches equalling Jack Russel against South Africa in Nov 1995 & AB de Villiers against Pak in Feb 2013.  For long it was Bob Taylor’s 10 in that Golden jubilee test (remember he was recalled by Gundappa Viswanath in that test in Feb 1980 at Bombay) .. .. and what is mostly forgotten is Wriddhiman Saha took 10 at Capetown in Jan 2018 – but now is nowhere in the frame after an injury .. that is fate !  ~ Pant may rue that drop of Lyon which would have place him higher ~ but all that happens ..

When the last catch was held, Indian captain Virat Kohli whirled like a dervish for a moment, then went immediately to the disconsolate Josh Hazlewood, to the umpires and to Nathan Lyon as he rose from his haunches at the other end. Hugs and handshakes followed all 'round. The first four days had passed without incident or incendiaries. The last day might have been a trial of the sangfroid of both teams, as well as their detente. It consisted of two long and teasing sessions, in which victory appeared to dance away from India without ever quite coming within Australia's reach. Wickets fell only at long intervals, but runs were at a premium, too, which left plenty of time for dwelling, and for giving offence and taking it.

Tension and apprehension were palpable, but still little niceties were observed. When a Jasprit Bumrah bouncer cannoned off Mitch Starc's helmet, bowler and batsman made reciprocal gestures of understanding, as tennis players do. When a Mohammed Shami lifter crashed into Nathan Lyon's shoulder first ball at the crease, Shami asked if he was OK and Lyon replied with a thumbs up. These might seem small matters, but at other times and places they were not even this seemly.

India led from pillar to post, but somehow, this became a narrow thrashing, yet die-hard were fans were slowly getting concerned. With Aussie needing 64 at the fall of the ninth wicket, it should have been easy -    Lyon and Hazlewood cemented themselves in, the score kept mounting and the crowd and the nation were drawn in to another Adelaide cliffhanger. Dots were clapped individually, singles hailed like Caesar, boundaries rejoiced in as if they were national holidays, but between times silence reigned. The voluble Pant lost his voice for the first time in five days, and even the press box fell as quiet as if stewards were holding up placards from the golf. Suddenly, every run had the weight of two, every near-miss a nick out of hearts on both sides.

An Ishant no-ball was a twisting of the knife to India, Hazlewood's deliberate tip over slips another, yet still they bit their tongue while Australia swallowed its stomach.  Five highly-strung days came to a final release with Josh Hazlewood and Nathan Lyon, Australia’s best, down on their haunches feeling more responsible for their failure to win as their success in getting their team within 32 runs. They failed at nothing.

At the end, Australian captain Tim Paine  questioned the accuracy of the decision review system after a series of contentious calls in Adelaide. Umpire Nigel Llong was at the centre of several questionable calls. He gave Ajinkya Rahane out caught at bat-pad for 17 early on Sunday but the decision was overturned on review. Replays indicated the ball had hit Rahane's front pad outside the line of off stump and missed his bat and gloves. First-innings century maker Cheteshwar Pujara was adjudged out on eight and 17 to Lyon on Saturday but the dismissals were overturned. Paine was not keen to elaborate on his displeasure about the DRS but his frustration was clear.  But clearly one man would be too happy - Aaron Finch has been encouraged to use the DRS should he again have doubts about his dismissal. The opening batsman opted not to call for a replay after he was caught in close off spinner Ravi Ashwin on the final ball before tea on Sunday in Australia's second innings. Finch consulted partner Marcus Harris before opting to walk. Replays suggested the ball had not flicked the gloves although third umpire Chris Gaffaney had later told Lyon there was inconclusive evidence to overturn the decision, meaning Finch would still have been out had he asked for a replay.  .. .. but when he was given out LBW to a massive incutter of Ishant, he went for DRS, - even before ball-tracking was to come, it was observed that Ishant had overstepped .. a no-ball that Dharmasena failed to spot !!

During the 76th over of Australia's 323-run chase, Rishabh Pant took over the commentary for an entire over during Day 5 of a thrilling Test between India and Australia and cricket fans have mixed reactions about his performance. Come on Pat, you're not putting the bad ball away!" Pant quipped during Ashwin's over. "Tough to play here," he added in an attempt to unnerve the batsman. Gavaskar insisted that it's okay for wicketkeepers to talk to their bowlers and egg them on but he pointed out the risk of sledging an opposition player, especially a fast bowler. As Cummins tried to block everything that came his way, Pant chirped: "Let's see some sixes, come on Patty", "Not going for the shots Patty ? .. .. but perhaps it was a friendly banter to his IPL teammate !!

An Indian win, perhaps Pujara made all the difference and rightly the man of the match  ~ but I would ever relish that famous win at Melbourne 1981 fashioned by Kapil Dev.

Regards – S. Sampathkumar
11th Dec 2018

Monday, December 10, 2018

celebrating Birth Anniversary of Mahakavi Subramaniya Barathiyar 2018

11th  Dec  is a day to remember ~ it marks the 135th birth   anniversary of the greatest poet, a great son of India – Mahakavi Subrahmanya Barathiyar.
வந்தே மாதரம் என்போம்-எங்கள்  மாநிலத் தாயை வணங்குதல் என்போம்.
- என்ற வரிகளை கேட்டு மெய் சிலிர்த்தது உண்டா ?

The man who was to become an iconoclastic freedom fighter was born in a small village called Ettayapuram on Dec 11, 1882. His  parents  Chinnasami Subramanya Iyer and Lakhsmiammaal named him Subbaiah.  From a very young age he learnt music and at 11th , he learnt songs; he was conferred the title of "Bharathi" (one blessed by Saraswati, the goddess of learning).  Interestingly, this is what he claimed himself to be (at a much later stage !)

நமக்குத் தொழில்கவிதை,  நாட்டிற்கு உழைத்தல்*
இமைப் பொழுதுஞ் சோராதிருத்தல்- உமைக்கினிய
மைந்தன் கணநாதன் நங்குடியை வாழ்விப்பான்;
சிந்தையே! இன்மூன்றும் செய்.

He prayed Lord Siva (Umainathan) to bless the community stating that his avocation was ‘writing poetry, working for mother land and persevering without battling eye-lid for the cause’ – appeals blessing for these three !
சுப்ரமணிய பாரதியார் ~ ஒரு உன்னத பிறவி.   கவிதைகள் வாயிலாக மக்களின் மனதில் விடுதலை உணர்வை ஊட்டியவர். இவர் ஒரு கவிஞர் மட்டுமல்லாமல் ஒரு எழுத்தாளர், பத்திரிக்கை ஆசிரியர், சமூக சீர்திருத்தவாதி - தன்  காலத்துக்கு  மிகவும் பல்லாண்டுகள்  பிறகு நடக்க வல்லவை பற்றி  கூர் நோக்குடன் சிந்தித்தவர்.  குறைந்த காலமே வாழ்ந்தாலும் சாதனைகள் செய்தவர். இளமையிலேயே கவிபாடும் திறமை பெற்றிருந்த சுப்பிரமணியன், எட்டையபுர சமஸ்தானப் புலவர்கள் அவையில் பாரதி என்ற பட்டம் பெற்றார். அன்று முதல் இவர்“சுப்பிரமணிய பாரதியார்”என அழைக்கப்பெற்றார்.

wishes of Mahatma Gandhi for Manimandapam at Ettayapuram

Bharathi started his own journal India in 1906 and published his fiery patriotic poems and blunt anti-colonial articles. His association with V. O. C. became more intimate, the latter floated his Swadeshi Steam Navigation Company in 1906. Bharathi helped him in getting contributions for shares in the company and donations. The great man hailed as Kappalottiya thamizhan fought  Imperial British traders challenging them at sea.  Irked by this, VOC  was subsequently foisted with  serious charges of sedition and conspiracy, which got him two life terms of rigorous imprisonment whence he was physically assaulted and humiliated.  Barathiyar too underwent harassment and was severely injured in prison, which infact led to his death.
Sri Kannan purappadu and Barathiyar residence at Thiruvallikkeni

By his songs and concerted actions, he reached to the masses making the aware of the need for freedom struggle and could make a great movement in Southern part of the Nation.  He was a fiery leader with progressive leader and great vision, clearly a man who lived much beyond his age and foresaw things clearly.  Bharathi supported Tilak and Aurobindo together with V. O. Chidambaram Pillai and Kanchi Varathaachariyar. Tilak openly supported armed resistance against the British. In 1908, he gave evidence in the case which had been instituted by the British against V.O. Chidambaram Pillai. In the same year, the proprietor of the journal India was arrested in Madras. Faced with the prospect of arrest, Bharathi escaped to Pondicherry which was under French rule. From there he edited and published the weekly journal India, Vijaya, a Tamil daily, Bala Bharatha, an English monthly, and Suryothayam, a local weekly of Pondicherry. The British tried to suppress Bharathi's output by stopping remittances and letters to the papers. Both India and Vijaya were banned in British India in 1909.

His poetry stands out for many facets of his love for his motherland. He berates his countrymen for many social evils. He chastises them for a fearful and pusillanimous attitude towards the rulers. He gave a clarion call for national unity, removal of casteism and the removal of oppression of women. He calls for the British to leave the motherland in forceful ways at one point saying "Even if Indians are divided, they are children of One Mother, where is the need for foreigners to interfere?".

The land of Pondicherry bears connection to this great revolutionary.  Apart from running journals and magazines from here, he sung about the famous deity of Pondy ~ “Manakula Vinayagar” in his Vinayagar Nanmani Maalai [விநாயகர் நான்மணி மாலை] – by some accounts this was published out of handwritten manuscripts in 1929 posthomously.
 Barathiyar family and his manuscripts at Ettayapuram

Bharati’s knowledge of the happenings around him, and all over the world was accurate and detailed. As a journalist, who had to deal with international matters, he read almost all the English newspapers, especially those published from England. He discussed in his articles many matters relating to the freedom of India, its economic, political, artistic and spiritual growth, in comparison with other nations, who were caught in a similar predicament.

An Organisation ~ “Vaanavil Panpattu Maiyam”  have been celebrating the birth anniversary of Mahakavi every year, by organizing various programmes at Triplicane at the house where Bharatiyar resided.   This year they are celebrating Bharathi  [2 days at Kalaivanar Arangam & 2 days at Triplicane residence of Barathiyar]

In the words of Bharathi, those who are truly devoted would not be impatient and would not do things in a hurry for they know how life grows out steadily out of seed; and for those who are given to understanding the divine power is everything ~ also know that all they need to do is to work with esteem rest being taken by Divine shakthi.

பக்தியுடையார் காரியத்திற் பதறார், மிகுந்த பொறுமையுடன்
வித்து முளைக்குந் தன்மைபோல் மெல்லச்செய்து பயனடைவார்,
சக்தி தொழிலே அனைத்துமெனிற் சார்ந்த நமக்குச் சஞ்சலமேன்?
வித்தைக்கிறைவா, கணநாதா, மேன்மைத் தொழிலிற் பணியெனையே.

Fortunate to live in the land where great people like Bharathiyar lived and happy to be participating in such events.
With great regards to the poet – S. Sampathkumar.
11th Dec 2018.

1)     The man in the photo is a centurion (101+) – Mandayam S Parthasarathi Iyengar, son of Mandayam Srinivasachariyar who owned the magazine ‘India’ in which Barathiyar was employed as Editor. 

2)     The elderly gentleman (left)  seen is Mr Kumari Ananthan (85 yrs) – he had been MP from Nagercoil and later MLA from Thiruvottiyur, Radhapuram & Sathankulam.  He is known for his simplicity, Tamil oratory skills and affection to Mahakavi Barathiyar.
3)     Sri Muthuswami Dikshithar (1775-1835)_ poet composer- of the musical trinity of Carnatic music passed away in Ettayapuram.

Ettayapuram photos ~ special thanks to Mr M Chandrasekar