In a suit for permanent injunction under Section 38 of the Specific Relief Act, proof of possession as on the date of suit is the decisive factor. Admissions by the defendant regarding possession and construction of boundary wall are sufficient to establish plaintiffs’ possession. A suit for injunction simpliciter is maintainable where possession is proved and title is not required to be conclusively adjudicated. Pendency of a declaratory suit relating to title does not bar grant of injunction to protect existing possession. Concurrent findings of fact by courts below, supported by evidence and admissions, are not open to interference under Section 100 CPC.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope — Interference with findings of fact — Principles reiterated.

Under Section 100 CPC, the High Court cannot interfere with findings of fact recorded by the First Appellate Court, which is the final Court of facts, unless such findings are:

(i) contrary to mandatory provisions of law,
(ii) contrary to settled legal principles laid down by the Supreme Court,
(iii) based on inadmissible evidence, or
(iv) arrived at without evidence.

Where findings are based on appreciation of oral and documentary evidence and supported by admissions, no interference is warranted.
(Paras 14, 20–21)

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Specific Relief Act, 1963 — Section 38

Permanent injunction — Essential requirement — Possession on date of suit.

In a suit filed under Section 38 of the Specific Relief Act, the plaintiff must establish actual, peaceful possession of the suit property as on the date of filing of the suit.
Initial burden lies upon the plaintiff to prove such possession.
(Para 16)

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Suit for Permanent Injunction — Maintainability — Title dispute

Injunction simpliciter — When maintainable.

Where plaintiffs plead possession supported by registered documents and the defendant admits construction of a compound wall by the plaintiffs, a suit for permanent injunction is maintainable.
Mere pendency of a separate declaratory suit filed by the defendant does not bar grant of injunction when possession is established.
(Paras 16–20)

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Admissions — Evidentiary value

Admissions in written statement and cross-examination — Binding effect.

Admissions by the defendant that:

• plaintiffs constructed the compound wall,
• there exist two boundary walls separating the properties, and
• plaintiffs are neighbours in possession,

constitute substantive evidence establishing possession of the plaintiffs.
(Paras 17, 19)

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Boundary dispute — Compound wall

Where existence and construction of compound wall by the plaintiffs is admitted by the defendant, such wall establishes separation of properties and supports the plaintiffs’ case of possession.
(Paras 17–19)

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Injunction suit — Title enquiry — Limited scope

In a suit for injunction, title is examined only incidentally to ascertain possession with semblance of right.
Where possession is admitted and proved, the Court need not decide title in an injunction suit.
(Paras 18–20)

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Declaratory suit — Pendency

Effect on injunction proceedings.

Dismissal of a comprehensive suit for declaration and mandatory injunction filed by the defendant, and pendency of appeal therefrom, does not disentitle the plaintiffs from protection of possession by way of injunction.
(Paras 15, 18–20)

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First Appellate Court — Re-appreciation of evidence

Where the First Appellate Court re-appreciates the entire evidence on record and records findings supported by documents and admissions, the judgment does not suffer from illegality.
(Paras 16, 20)

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Concurrent findings — Exceptions

High Court will not interfere with concurrent findings unless courts below:

• ignored material evidence,
• acted on no evidence, or
• applied law erroneously.

Present case does not fall under any such exception.
(Paras 20–21)

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RATIO DECIDENDI

1. In a suit for permanent injunction under Section 38 of the Specific Relief Act, proof of possession as on the date of suit is the decisive factor.

2. Admissions by the defendant regarding possession and construction of boundary wall are sufficient to establish plaintiffs’ possession.

3. A suit for injunction simpliciter is maintainable where possession is proved and title is not required to be conclusively adjudicated.

4. Pendency of a declaratory suit relating to title does not bar grant of injunction to protect existing possession.

5. Concurrent findings of fact by courts below, supported by evidence and admissions, are not open to interference under Section 100 CPC.

A sale deed executed by persons having no title is void ab initio and conveys no right, title or interest to the purchaser. A transferee cannot acquire better title than that possessed by the vendor. A void document need not be cancelled; it is non est in law and not binding on the true owner. Where title is seriously disputed, a suit for permanent injunction simpliciter is not maintainable without declaration of title. Questions not pleaded or raised before the courts below cannot be introduced for the first time in second appeal. Concurrent findings of fact based on evidence are not open to interference under Section 100 CPC in the absence of perversity.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Concurrent findings of fact — Scope of interference — Principles reiterated.

High Court cannot interfere with concurrent findings of fact recorded by the courts below unless such findings are:

(i) contrary to mandatory provisions of law,
(ii) contrary to settled legal position laid down by the Supreme Court,
(iii) based on inadmissible evidence, or
(iv) arrived at without evidence.

Where findings are supported by oral and documentary evidence and no perversity is shown, interference under Section 100 CPC is impermissible.
(Paras 15, 34–35)

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Sale Deed — Title — Vendor without title

Transfer by non-owner — Void ab initio — No title passes to vendee.

Where the vendors under the sale deed had no right, title or interest in the property on the date of execution, the sale deed is void ab initio and does not convey any right, title or interest to the transferee.
A transferee cannot acquire better title than that possessed by the vendor.
(Paras 19–21, 27, 31)

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Registered Sale Deed — Proof of title

Title stands proved where:

• original registered sale deed of the year 1988 is produced,
• link documents are established,
• vendors depose supporting execution, and
• possession is shown pursuant to registered conveyance.

Registered sale deed executed by true owners prevails over subsequent documents executed by persons without title.
(Paras 18–23, 30–31)

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Void Document — Cancellation — When unnecessary

Where a sale deed is void ab initio having been executed by persons without title, such document is non est in the eye of law and is not binding on the true owner.
In such circumstances, the true owner can seek declaration of title and possession without seeking cancellation of the void document.
(Paras 27, 31)

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Suit for Permanent Injunction — Title dispute — Maintainability

Injunction simpliciter — Not maintainable when title is under cloud.

When the plaintiff’s title is seriously disputed and complicated questions of title arise, a mere suit for permanent injunction is not maintainable.
The plaintiff must seek declaration of title in addition to injunction.
(Paras 32–33)

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Injunction Suit — Limited scope of title enquiry

In suits for injunction, title can be incidentally examined only to ascertain possession with semblance of right.
Where title itself is under cloud, parties must be relegated to a comprehensive declaratory suit.
(Para 33)

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Hindu Succession Act, 1956 — Section 15(2)

Plea raised for first time in second appeal — Not permissible.

A contention regarding devolution of property under Section 15(2) of the Hindu Succession Act cannot be raised for the first time in second appeal in the absence of pleadings before the trial court and first appellate court.
Such plea does not constitute a substantial question of law.
(Paras 24–25)

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Pleadings — Evidence — Absence of pleadings

Issues not pleaded and not put in issue before the courts below cannot be permitted to be raised at the stage of second appeal.
(Para 25)

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Burden of proof — Title suits

Where execution of sale deed is denied and vendors’ title is disputed, the burden lies upon the party relying on such sale deed to establish:

• vendors’ title,
• consideration, and
• valid conveyance.

Failure to examine vendors or produce supporting documentary evidence is fatal to the claim of title.
(Paras 19–21)

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Evidence — Non-examination of vendors

Non-examination of vendors who are parties to the suit proceedings creates adverse inference against the party relying upon such sale deed.
(Paras 19–21)

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Order XLI Rule 31 CPC — First Appellate Court

Compliance — Judgment valid.

Where the first appellate court framed points for consideration, re-appreciated evidence and assigned reasons for confirming the trial court decree, the judgment cannot be invalidated on the ground of non-compliance with Order XLI Rule 31 CPC.
(Paras 28–29)

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Second Appeal — Substantial question of law

Where the substantial questions of law framed at admission do not survive on appreciation of evidence and settled legal principles, the second appeal is liable to be dismissed.
(Para 35)

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RATIO DECIDENDI

1. A sale deed executed by persons having no title is void ab initio and conveys no right, title or interest to the purchaser.

2. A transferee cannot acquire better title than that possessed by the vendor.

3. A void document need not be cancelled; it is non est in law and not binding on the true owner.

4. Where title is seriously disputed, a suit for permanent injunction simpliciter is not maintainable without declaration of title.

5. Questions not pleaded or raised before the courts below cannot be introduced for the first time in second appeal.

6. Concurrent findings of fact based on evidence are not open to interference under Section 100 CPC in the absence of perversity.

When the extent of property and share of parties is in dispute, a bare suit for permanent injunction is not maintainable without seeking declaration of title. In injunction suits, reference to title is limited only to test possession with semblance of right and cannot substitute a declaratory adjudication of title. Disputes between co-sharers or joint family members regarding extent of property necessarily require declaration of title. Failure of courts below to examine maintainability of injunction suit in the presence of title dispute gives rise to substantial questions of law under Section 100 CPC. Improper appreciation of evidence by courts below itself constitutes a substantial question of law warranting admission of second appeal.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Admission stage

Substantial question of law — Maintainability of suit for permanent injunction — Dispute relating to title and extent — Appreciation of evidence — Appeal admitted.

Where the appellant contended that:

(i) parties are in possession of different extents pursuant to an earlier partition decree and subsequent settlement by elders,
(ii) extent of property is seriously disputed, and
(iii) courts below decreed the suit for bare injunction without considering necessity of declaration of title,

the High Court held that substantial questions of law arise warranting admission of the second appeal.
(Paras 1–6)

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Suit for Permanent Injunction — Title dispute — Maintainability

Mere injunction suit — When not maintainable — Declaration of title necessary.

When dispute exists regarding:

• extent of property,
• respective shares of parties, and
• title arising from alleged joint family arrangement,

a mere suit for permanent injunction is not maintainable, and the plaintiff ought to seek declaration of title.
(Paras 2–4)

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Injunction simpliciter — Possession — Semblance of right

In a suit for permanent injunction, reference to title is permissible only to examine whether the plaintiff is in possession with semblance of right and not as an outright trespasser or encroacher.
Any party seeking adjudication of title must necessarily file a suit for declaration of title.
(Para 3)

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Joint family property — Dispute between co-sharers

Where plaintiff and defendant are step-brothers claiming enjoyment of joint family properties, and the defendant disputes the extent of plaintiff’s share, a suit for injunction alone without declaration of title is legally not maintainable.
(Para 4)

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Appreciation of evidence — Question of law

Whether the courts below properly appreciated the oral and documentary evidence on record constitutes a substantial question of law in the facts of the case.
(Para 5)

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Second Appeal — Admission

In view of the substantial questions of law arising from:

• maintainability of injunction suit,
• dispute regarding title and extent, and
• appreciation of evidence,

the Second Appeal was admitted.
(Paras 6–7)

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RATIO DECIDENDI

1. When the extent of property and share of parties is in dispute, a bare suit for permanent injunction is not maintainable without seeking declaration of title.

2. In injunction suits, reference to title is limited only to test possession with semblance of right and cannot substitute a declaratory adjudication of title.

3. Disputes between co-sharers or joint family members regarding extent of property necessarily require declaration of title.

4. Failure of courts below to examine maintainability of injunction suit in the presence of title dispute gives rise to substantial questions of law under Section 100 CPC.

5. Improper appreciation of evidence by courts below itself constitutes a substantial question of law warranting admission of second appeal.

ADVOCATEMMMOHAN: Property possessed by a female Hindu, even if orig...Property possessed by a female Hindu, even if originally held as a widow’s estate, becomes her absolute property by operation of Section 14(1) of the Hindu Succession Act, 1956. After commencement of the Hindu Succession Act, 1956, the Hindu Women’s Rights to Property Act, 1937 cannot be applied, and any judgment founded on the repealed statute is legally perverse. A female Hindu who becomes absolute owner under Section 14(1) is fully competent to alienate the property by gift, sale, or settlement without consent of reversioners. In a suit for declaration of title and possession, the plaintiff must succeed on the strength of his own title; admissions and absence of documentary proof are fatal. Where long possession under registered gift deeds is admitted and suit is instituted beyond twelve years, the claim is barred under Article 65 of the Limitation Act. Second appellate interference is justified where the First Appellate Court reverses a trial court decree by applying repealed law, ignoring statutory mandate and binding precedent.

ADVOCATEMMMOHAN: Property possessed by a female Hindu, even if orig...: advocatemmmohan Hindu Law — Female Hindu — Absolute ownership — Section 14(1), Hindu Succession Act, 1956 Hindu woman in possession of prop...

Hindu Law — Female Hindu — Absolute ownership — Section 14(1), Hindu Succession Act, 1956

Hindu woman in possession of property prior to 1956 — Enlargement of limited estate — Widow’s estate — Absolute ownership — Effect of repeal of Hindu Women’s Rights to Property Act, 1937 — Applicability after 1956 — Held, widow becomes full owner — Gift executed valid.

Where the widow was in possession of the estate of her deceased husband and son from the year 1941 onwards and continued in possession till after commencement of the Hindu Succession Act, 1956, her limited estate stood enlarged into an absolute estate by operation of Section 14(1) of the Act.
Application of the Hindu Women’s Rights to Property Act, 1937 after 1956 is barred in view of Sections 4 and 14(1) of the Hindu Succession Act.
Gift deeds executed by such female Hindu after commencement of the Act are valid and binding.
(Paras 44–49, 55–59)

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Hindu Succession Act, 1956 — Sections 4, 14(1) — Overriding effect

Repealed statute — Hindu Women’s Rights to Property Act, 1937 — Cannot be applied after 1956 — Erroneous reliance by appellate court — Perversity.

Once the Hindu Succession Act, 1956 came into force, and particularly after repeal under Section 31, the provisions of the Hindu Women’s Rights to Property Act, 1937 stood excluded.
Application of the repealed enactment by the First Appellate Court was legally impermissible and vitiated the judgment.
(Paras 39–43, 47–49)

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Hindu Law — Succession — Reversion — Doctrine of reversion — Not applicable after Section 14(1)

Where the female Hindu had become full owner under Section 14(1), the doctrine of reversion stands extinguished and the property does not revert to the heirs of the last male holder.
Claim of reversioners after death of widow held not maintainable.
(Paras 49–55)

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Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope — Substantial question of law — Interference permissible where findings are perverse or based on repealed statute.

High Court cannot re-appreciate evidence unless findings of the First Appellate Court are:

(i) contrary to statutory provisions,
(ii) contrary to binding precedents, or
(iii) based on inadmissible or no evidence.

Where the appellate court reversed a well-reasoned trial court decree by applying a repealed statute, the judgment suffers from perversity warranting interference under Section 100 CPC.
(Paras 16–18, 39–40, 60)

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Limitation Act, 1963 — Article 65

Suit for possession — Knowledge of adverse possession — Limitation begins from date of hostile possession — Admissions binding.

Where plaintiffs admitted:

• execution of registered gift deeds in 1983,
• possession of defendants from 1984–1988 onwards,
• mutation and payment of land revenue by defendants,

and suit for possession was filed in 2001, the claim stood barred under Article 65 of the Limitation Act.
(Paras 20–23)

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Evidence Act — Admissions — Binding effect

Admissions of plaintiffs in cross-examination regarding possession, mutation, payment of land revenue, execution of gift deeds, and long enjoyment by defendants are substantive evidence and decisive against the plaintiffs’ claim.
(Paras 21–23, 30, 46)

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Declaratory Suit — Burden of proof

Plaintiff must succeed on strength of own title — Weakness of defendant’s case irrelevant.

In suits for declaration of title and recovery of possession, the burden lies entirely on the plaintiff to establish title by cogent evidence.
Failure to prove own title results in dismissal, irrespective of defects in the defendant’s case.
(Paras 26–33)

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Civil Suit — Declaration and Possession — Absence of documents

Where plaintiffs failed to file even a single document to establish title or possession, and relied solely on oral evidence contradicted by admissions, the suit was liable to be dismissed.
(Paras 29–33)

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Gift Deed — Registered settlement — Proof

Registered gift deeds accepted by donees, followed by delivery of possession, mutation in revenue records, issuance of pattadar passbooks and long possession constitute valid transfer of title.
(Paras 34–35)

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Pleadings — Parties bound by pleadings

Plaintiffs having pleaded exclusive possession of widow from 1941 till her death cannot subsequently contend joint family or coparcenary rights.
(Paras 37–38)

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Contempt of Courts Act — Order 39 Rule 2-A CPC

No injunction order — No undertaking by contemnors — Contempt not maintainable.

Where no prohibitory order restraining construction was passed and no undertaking was given by alleged contemnors, contempt proceedings are not maintainable.
On setting aside the appellate decree, no executable order survived.
Contempt case liable to be closed.
(Paras 64–68)

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RATIO DECIDENDI

1. Property possessed by a female Hindu, even if originally held as a widow’s estate, becomes her absolute property by operation of Section 14(1) of the Hindu Succession Act, 1956.

2. After commencement of the Hindu Succession Act, 1956, the Hindu Women’s Rights to Property Act, 1937 cannot be applied, and any judgment founded on the repealed statute is legally perverse.

3. A female Hindu who becomes absolute owner under Section 14(1) is fully competent to alienate the property by gift, sale, or settlement without consent of reversioners.

4. In a suit for declaration of title and possession, the plaintiff must succeed on the strength of his own title; admissions and absence of documentary proof are fatal.

5. Where long possession under registered gift deeds is admitted and suit is instituted beyond twelve years, the claim is barred under Article 65 of the Limitation Act.

6. Second appellate interference is justified where the First Appellate Court reverses a trial court decree by applying repealed law, ignoring statutory mandate and binding precedent.

Overlooking material evidence already on record constitutes an error apparent on the face of the record and justifies exercise of review jurisdiction under Section 114 read with Order 47 Rule 1 CPC. In motor accident claims, the obligation of the Court is to award just compensation, even exceeding the claim amount, when supported by evidence. Where litigation has remained pending for decades, review and modification based on existing material is preferable to remand or reopening of evidence.

Code of Civil Procedure, 1908 — Section 114 — Order 47 Rule 1 — Review — Scope

Power of review is not an appellate power. Review is permissible only on discovery of new and important matter or evidence, or on account of mistake or error apparent on the face of the record, or for any other sufficient reason. Re-appreciation of evidence or rehearing of the matter on merits is impermissible under review jurisdiction.

(Paras 14, 15, 16)

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Review — Error apparent on face of record — Overlooking material evidence

Where material evidence available on record is overlooked by the Tribunal as well as by the High Court while deciding the appeal, such omission constitutes an error apparent on the face of the record, warranting exercise of review jurisdiction.

(Paras 16–22)

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Motor Vehicles Act, 1988 — Compensation — Review — Permissibility

In motor accident claims, where important documentary and oral evidence regarding employment and income of the deceased was already on record but was ignored, the High Court is justified in reviewing and modifying its earlier judgment instead of remanding the matter, particularly when the litigation is pending for more than two decades.

(Paras 21–22)

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Additional evidence — Order 41 Rule 27 CPC — Review stage — Maintainability

Additional evidence under Order 41 Rule 27 CPC can be considered only when the appeal is pending. After disposal of the appeal, additional evidence cannot be introduced by linking it with a review application, as the same amounts to putting the cart before the horse.

(Paras 10–11)

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Motor accident compensation — Enhancement of claim — Stage of proceedings

Enhancement of claim amount is permissible while the matter is pending. After disposal of the appeal, entertaining an application for enhancement in review proceedings is impermissible and amounts to lack of due diligence.

(Paras 12–13)

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Motor Vehicles Act, 1988 — Just compensation — Claim exceeding amount claimed

There is no legal bar to awarding compensation in excess of the amount claimed, if the claimants are otherwise entitled to just compensation. The duty of the Court is to determine compensation which appears to be just under Section 168 of the Act.

(Paras 12, 24)

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Income of deceased — Salary certificate — Appreciation of evidence

Where the widow of the deceased deposed regarding employment and income of the deceased and the salary certificate was marked without dispute, absence of further cross-examination on employment and earnings renders the evidence reliable. Overlooking such evidence constitutes manifest error.

(Paras 18–21)

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Inquest report — Evidentiary value

Statements recorded in the inquest report regarding occupation and nature of duty of the deceased, entered in due discharge of official functions, constitute important material evidence and cannot be ignored while assessing income.

(Para 21)

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Future prospects — Addition — Government employment

For a deceased aged between 40–50 years in permanent employment, 30% addition towards future prospects is mandatory as per the principles laid down in Pranay Sethi.

(Paras 23–25)

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Multiplier — Selection — Sarla Verma principles

Multiplier has to be applied strictly in accordance with the age of the deceased as prescribed in Sarla Verma v. DTC. For the age group of 41–45 years, the appropriate multiplier is 14.

(Paras 23, 25)

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Consortium — Entitlement — Wife and children

Compensation under the head of loss of consortium is payable not only to the spouse but also to children under the head of parental consortium, in terms of Magma General Insurance Co. Ltd. v. Nanu Ram.

(Para 26)

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Motor accident compensation — Long pendency — Interest

Considering the long lapse of time in adjudication, interest can be reasonably reduced while enhancing compensation in review proceedings.

(Paras 27–28)

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RATIO DECIDENDI

1. Overlooking material evidence already on record constitutes an error apparent on the face of the record and justifies exercise of review jurisdiction under Section 114 read with Order 47 Rule 1 CPC.

2. In motor accident claims, the obligation of the Court is to award just compensation, even exceeding the claim amount, when supported by evidence.

3. Where litigation has remained pending for decades, review and modification based on existing material is preferable to remand or reopening of evidence.