Case BriefsSupreme Court

Supreme Court: In the case where a 35-year-old woman victim of sexual assault had sought for termination of pregnancy on the ground that she is HIV positive, the Court, after considering the report of the AIIMs medical Board which stated that the procedure involved in termination of the pregnancy is risky to the life of the petitioner and the fetus in the womb, held that though there cannot be termination of pregnancy but the State of Bihar will provide all the medical facilities to the petitioner as per the treatment graph given by the doctors who are going to examine the petitioner at AIIMS through the Indira Gandhi Institute of Medical Sciences at Patna.

The Medical Board had also suggested that she is advised to continue HAART therapy and routine antenatal care, to reduce the risk of HIV transmission to the fetus/baby to the minimum. The Court hence, directed the Indira Gandhi Institute of Medical Sciences to work in coordination with AIIMS, New Delhi so that the health condition of the petitioner is not further jeopardized.

The Bench of Dipak Misra and A.M. Khanwilkar, JJ also directed the State of Bihar to pay Rs. 3,00,000 to the petitioner as compensation under the scheme of Section 357-A CrPC within 4 weeks as she has been a victim of rape. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 09.05.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of A.K. Goel and U.U. Lalit, JJ held that a post-acquisition allottee of land is necessary or proper party or has any locus to be heard in the matter of determination of compensation under the scheme of the Land Acquisition Act, 1894.

In the present case, large land was acquired by the State of Haryana in different phases for the public purpose of setting-up Industrial Model Township by the Haryana State Industrial Development Corporation (HSIDC) in Gurgaon District in Haryana and a substantial part of the acquired land was allotted to Maruti Suzuki India Limited (MSIL). MSIL had sought for Impleadment as a necessary party in the matter relating to enhancement of compensation on the ground that it was a “person interested”. Rejecting the said contention, the Court said that the expression “person interested” could include a company or local authority for whose benefit the land was acquired under Part VII of the LA Act but the post-acquisition allottee cannot by any stretch of imagination be treated at par with beneficiary for whom the land was acquired.

Explaining the scheme of the LA Act, 1894, the Court said that if the acquisition is for a public purpose, the land vests in the State after the Collector makes an award and the possession is taken. Once the land vests in the State, the acquisition is complete. Any transferee from the State is not concerned with the process of acquisition. The State may transfer the land by public auction or by allotment at any price with which the person whose land is acquired has no concern. The mere fact that the Government chooses to determine the allotment price with reference to compensation price determined by the Court does not provide any locus to an allottee to contest the claim for enhancement of compensation. [Satish Kumar Gupta v. State of Haryana, 2017 SCC OnLine SC 159, decided on 21.02.2017]

Case BriefsHigh Courts

Delhi High Court: The Single Bench of Sanjeev Sachdeva, J. has stayed the order of Central Information Commission, whereby, it has directed the Public Information Officer of Tihar Jail to pay compensation to the respondent for keeping him under extra detention. The CIC, by the impugned order, had also directed the petitioner to frame policy/guideline/regulation for a system of resolving disputes regarding remission and paying compensation to prisoners who lost their personal liberty due to extra detention.

The Court observed that perusal of the order, prima facie, showed that the CIC has exceeded the jurisdiction conferred upon it by the Right to Information Act, 2005. Therefore, the operation of order was stayed till the next date of hearing. [Public Information Officer, Tihar Jail v. Om Prakash Gandhi, Writ Petition No. 621 of 2017, decided on January 24, 2017]

Case BriefsSupreme Court

Supreme Court: Showing concern over the fate of the student who has been deprived of admission to the MBBS course, despite he or she being meritorious, vigilant and diligent and thereby abandoning the path of recalcitrance and eventually being found flawless, is forced to suffer non-admission to the course for which he had aspired for and found suitable because of lapses committed either by the counselling authority or the administrating authority intrinsically connected with the process of admission; the bench of Dipak Misra and R.F. Nariman, JJ said that when the courts have gone to the extent of saying that for the fault of the court, the litigant should not suffer, it is unimaginable that for the fault of the administrators or the counselling body or for some kind of evil designer, grant of compensation should be regarded as the lone remedy.

Relying upon the 2-judge bench decision in Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, the Medical Council of India contended that grant of compensation is the only possible remedy. The Court hence said that the aforementioned decision requires re-consideration by a larger bench as the redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognize the right, record a finding that there is a violation of the right and deny the requisite relief. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonizing but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. [S. Krishna Sradha v. State of Andhra Pradesh, 2017 SCC OnLine SC 66, decided on 19.01.2017]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): An amount of Rs 1 lakh has been imposed upon Malaysian Airline System Berhad as compensation for delay and damages caused to a consignment which was airlifted by the Airlines from Los Angeles to India.

Facts of the case are that the complainant Firm had engaged the services of the Malaysian Airlines for airlifting of the consignment from Los Angeles to India on November 12, 1999 but only a part of the consignment arrived in India on its scheduled date of December 15, 1999, and the other part came on January 6, 2000, in a damaged condition. Alleging deficiency on the part of Malaysian Airlines, complainant Firm filed complaint before Delhi State Commission. After hearing both the parties and considering factual aspects of the case, State Commission partly allowed the complaint and directed the Airlines to pay Rs. 75,000/- towards loss incurred on account of damage and delay and Rs.1,00,000/- for harassment, mental agony etc. Against the said order, an appeal was filed before the National Commission by the Airlines.

After perusal of material on record and hearing the submissions of both the parties, NCDRC modified the order passed by the State Commission and observed that as complainant Firm had not adduced any evidence to prove damage by pleading what was the price on the due date of delivery and what was the price on the actual date of delivery, it is appropriate to reduce compensation to Rs. 50,000/- against Rs. 75,000/- allowed by the State Commission towards damage caused to the goods as well delay in delivery of consignment. While partly allowing the appeal, National Commission further noted that as no reasons have also not been given by the State Commission for allowing compensation of Rs. 1,00,000/- towards harassment, mental agony, etc., it would be appropriate to reduce aforesaid amount of Rs. 1,00,000/- to Rs. 50,000/- to meet the ends of justice, as admittedly there was delay in delivery of consignment. [Malaysian Airline System Berhad v. Dentply India (P) Ltd., 2017 SCC OnLine NCDRC 3, decided on January 5, 2017]

Case BriefsHigh Courts

High Court of Madras: The Court while examining a petition filed for compensation by the petitioner in view of severity of the petitioner’s injury, from the first respondent in connection with the crime under Sections 294(b) and 307  IPC, the Bench comprising of V. Bharathidasan, J., directed the petitioner/victim to claim compensation from the District Legal Services Authority (DLSA) under the Victim Compensation Scheme (VCS) framed under Section 357-A  CrPC. The petitioner/victim  moved the court seeking compensation in view of the severity of her injury, expenditure with regard to grafting and reconstruction surgery, physical and mental pain and for disability due to the acid attack thrown on her by attacker, Vennila, as result of frequent quarrels and even after taken extensive treatment the petitioner/victim has totally lost her sight.

The Court directed petitioner/victim to make an application before the District Legal Services Authority since petitioner/victim had not filed any application seeking compensation under the Victim Compensation Scheme framed under Section 357-A  CrPC, within a period of three weeks from the date of judgment. The Court also issued direction to DLSA to consider the application of victim and pass orders for recommending the petitioner’s case for compensation within a period of 12 weeks thereafter. [Muthulakshmi v. The District Collector, Ramnad District, 2016 SCC OnLine Mad 10398, decided on 22nd November, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): NCDRC has upheld an order of Rajasthan State Commission vide which Rs 25,000 has been imposed upon Postal Department for delay in delivery of an application form of a man for the post of a Civil Judge which made him miss the chance. An additional amount of Rs 10,000 has also been awarded to the complainant as litigation expenses.

Earlier, the complainant sent an application form for the post of a Civil Judge through speed post from a post office at Mandawar in Rajasthan to the High Court Registrar of Madhya Pradesh. It was alleged by the complainant that the said application form reached the destination two days after the last date, and was rejected on this ground. Seeking damages, complainant approached District Forum but his complaint was dismissed. Aggrieved by the said order, the complainant preferred an appeal before the State Commission.

State Commission observed that the negligence was committed by the India Post Department in the matter as the dak of the complainant which should have been received on the fourth day, was received on the sixth day by the addressee and directed the Department to pay Rs 25,000 as compensation and Rs 10,000 as litigation expenses to the complainant. Postal Department preferred a revision petition against the order of State Commission before NCDRC. It was averred that the Postal Department was exempted from any responsibility under Section 6 of the Post Office Act, 1898 in case of any loss, wrong delivery or delay and if the concerned officer, has committed the act willfully, only then the Department could be held responsible. It was pleaded that the Postal Department discharges a sovereign act and, therefore, the services rendered by the Postal Department are constitutional in nature and they cannot be made liable under Section 6 of the Post Office Act, 1898.

After hearing both the parties, NCDRC observed that the only stand of the Postal Department in this case was that the relevant records were not available and therefore the reasons cannot be ascertained. It was further observed that such attitude of the Postal Department was a deliberate attempt to hide the real reason for the wrong doing of its employee(s) in not delivering the letter within the norms prescribed by the Postal Department itself. “Such conduct of the Postal Department, leads to irresistible conclusion that there was a willful default on the part of its official(s) concerned, which is not being disclosed and, therefore, the case of the Complainant falls within the ambit of the exception carved out under Section 6 of the said Act. Having held so, and there being a clear deficiency of service under Section 2(1)(g) of the CPA, 1986, I am of the opinion that a reasonable compensation of Rs.  25,000 awarded by the State Commission is completely justified,” noted the Commission while dismissing the revision petition of the Postal Department. [Department of Post v. Gajanand Sharma, 2016 SCC OnLine NCDRC 1864, decided on December 8, 2016]

Case BriefsSupreme Court

Supreme Court: Stating that sections 305, 306 and 387 of the Madhya Pradesh Municipal Corporation Act, 1956 are quite reasonable, the Court said that reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to section 305(1) and compensation for inclusion of land in public street is payable under section 306(3) of the Act. Rejecting the contention that no time period was prescribed for payment of compensation, the Court said that law envisages speedy action without unreasonable delay and that is what is expected of the concerned authorities, in respect of the obligation imposed on them to be discharged. Due to this, the provision cannot be struck down as arbitrary nor can it be said to be confiscatory in nature. The Court was hearing the matter relating to ‘Bus Rapid Transit System Corridor’ where the land was being acquired for widening of roads.

The Court further explained that after the abolition of ‘the right to property’ as a fundamental right, the provisions are quite consistent with Article 300A of the Constitution and reasonable compensation is paid under sections 305 and 306 which if not acceptable, the remedy of arbitration and approaching the District Court under section 387 is available to seek the compensation which has to be on the basis of procedure prescribed in the Land Acquisition Act. Article 300A of the Constitution enables the State to put restrictions on the right by law but the same should not be arbitrary or excessive or beyond what is required in public interest. The imposition of restriction must not be disproportionate to a situation or statute. Legislation providing for deprivation of property under Article 300A must be just, fair and reasonable. Thus, it cannot be said that illusory compensation is provided under section 306 read with section 387 of the Act.

The bench of Jagdish Singh Khehar and Arun Mishra, JJ said that there is restriction put on the ownership rights and in the area no construction can be raised derogatory to the development plan/master plan. When the property vests is clearly culled out in section 305, however the property is held by owner once a development plan is prepared, subject to that use and it is not necessary to acquire the land for the purposes mentioned under section 305. Section 305 is otherwise also a reasonable method of acquisition of the property and it follows a detailed procedure for preparation of development plan/master plan or a town improvement scheme, as the case may be, which involves adjudicatory process and once action is taken under section 305, reasonable compensation follows, special procedure as prescribed, is a complete Code in itself and even if a person is not satisfied, he can claim adjudication under section 387 of the Act where the procedure of the Land Acquisition Act, 1894 is applicable.

The Court also said that development plan itself is binding and has to be implemented by the Corporation not only under the provisions of section 292 but also under the provisions of section 66(1)(y) of the Act of 1956 which mandates a duty upon the Corporation for fulfilling any obligation imposed by the Act or under any other law for the time being in force. [Ravindra Ramchandra Waghmare v. Indore Municipal Corporation, 2016 SCC OnLine SC 1405, decided on 29.11.2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): NGT has imposed heavy penalty upon thirteen industries located in Ullal Taluk, Dakshina Kannada District, Mangaluru, for having operated the fish meal and fish oil production units without taking adequate pollution control measures. A penalty of Rs 8 lakhs each was imposed upon five fish meal and fish oil manufacturing units where as Rs 5 lakhs each were slapped upon the rest eight fish meal and fish oil manufacturing units under the “Polluter Pays Principle”. The local residents who filed the application before NGT alleged that the respondent industries which were located in an ecologically fragile area emit Sox, Nox, CO, dimethylamine, triethylamine and hydrogen sulphide molecules and particulars from boilers, which were so extreme that it remains in the cloths even after several washes. Malodour comes from the raw material in the manufacturing process i.e., fish and from the wastewater sludge. The sludge generated from various stages of production has high level of organic matter contains traces of ammonia, phosphorous, nitrogen, dimethylamine and triethylamine resulting in change in aquatic environment by disrupting natural movement and migration of aquatic populations. A number of chemical compounds were formed during the bacteriological decomposition of the fish before it is cooked, which are volatile and if discharged without treatment they cause pollution to the marine environment.  After perusal of material on record, NGT observed that inspection reports of officials of Karnataka State Pollution Control Board (KSPCB) showed that Common Effluent Treatment Plant (CETP) of the Units suffered from various shortcomings and was not properly maintained. Even after a number of notices from KSPCB, defects of CETP were not rectified. “The respondent fish meal and fish oil manufacturing units indulged in negligence, violated the pollution control norms thereby causing pollution to the adjacent estuary waters by discharging untreated effluents and also caused nuisance and health hazard to the nearby residents by emanating malodour and stench. Inspite of repeated notices and directions given by various authorities they did not mend their ways and continued to operate the units in utter disregard of the environmental concerns. It is pertinent to note that the KSPCB itself on several occasions found that the respondent industries have failed to establish the CETP inspite of several directions issued from time to time. And even after installation of CETP it was not properly maintained. We, therefore, feel that it is a fit case to invoke the ‘Polluter pays’ principle against the respondents,” NGT noted in its order and slapped fine upon the thirteen fish meal and fish oil production units. NGT also imposed an amount of Rupees Twenty Five lakhs upon Fish meal and Fish oil Manufacturers Association for utter negligence and violation of standards in operating the CETP thereby leading to releasing of untreated effluents into the adjacent sea and causing pollution inspite of giving a number of opportunities to rectify the CETP. While concluding the judgment, NGT directed KSPCB to continue to monitor the units and do not allow them to operate unless the CETP is made to function by meeting all the required standards and all the individual units install the deodorisers and evaporators and make them fully functional. [Mohd. Kabir v. Union of India, Application No. 261 of 2014 (SZ), decided on July 8, 2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the legality of the arrest of a Doctor and her mother who is a Practicing Advocate on the basis of an FIR registered against them under Section 420( cheating) of the Penal Code, 1860 and Section 66-D ( Punishment for cheating by personation by using computer resource) of the Information Technology Act, 2000 was challenged,  the Court, holding that the officers of the State had played with the liberty of the petitioners and, in a way, experimented with it,  directed the State to pay compensation Rs.5,00,000 to each petitioner.

In the case, the informant had purchased an Aura Cam from the first petitioner after being satisfied by the demo of the machine. He later alleged that fraud had been committed by the first petitioner as the machine was not working which led to the arrest of the first petitioner and her mother who had no role in the matter. The Court agreed with the contention of the learned Amicus Curie, Mr. Sunil Fernandes that the police has violated the procedures that were needed to be followed for arresting the petitioners. The Court further held that the dispute was purely of a civil nature, but a maladroit effort had been made to give it a criminal colour.

The bench comprising of Dipak Misra , and S K Singh, JJ., said that the dignity of the Petitioners have been seriously jeopardized. They further added that that the liberty of the petitioner was curtailed in violation of law and that the  freedom of an individual has its sanctity. When the individual liberty is curtailed in an unlawful manner, the victim is likely to feel more anguished, agonized, shaken, perturbed, disillusioned and emotionally torn. It is an assault on his/her identity. The said identity is sacrosanct under the Constitution there has been a violation of Article 21 of the Constitution and the Petitioners were compelled to face humiliation. [Rini Johar v. State of MP, 2016 SCC OnLine SC 594, decided on 03.06.2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has directed Chief Minister Office, Delhi to provide all relevant documents before the Chief Minister to facilitate him to consider a uniform policy of providing compensation to families of government employees including doctors killed on duty. Said directions of CIC came upon an appeal filed by the mother of a doctor who met an untimely death due to exposure to swine flu during his service. She sought information about compensation for death of her son. Earlier on March 3, 2015, the son of appellant who was a Senior Resident (Anaesthesia) at Chacha Nehru Bala Chikitsalaya, died because of exposure to swine-flu while on duty. The appellant was earlier denied information in the matter by Health & Family Welfare Department as well as by the Chief Minister Office. The Commission noted that Delhi State Government has enhanced compensation to Rs 1 crore for officers in uniform if killed on duty but it is not clear whether the policy of the Delhi State covers a doctor’s family to get compensation for his death due to decease. “Like a police officer a doctor is also risking life by exposure to deadly deceases, which is no less than facing bullets. For any family, loss of doctor son will be an irreparable damage. Either police or doctor, both serve and sacrifice for state and thus need to be treated equally. No policy can discriminate life of a doctor from that of soldier for purposes of compensation,” the Commission further noted. After perusing the documents and hearing both the parties, Commission observed, “Deadly decease like swine flu is as worse as a killing assailant. If there is no such security measure, it is difficult to give moral strength to young doctors to treat suffering citizens. The state has a duty to form uniform policy and inform the people about it to provide compensation to the family for unforeseen death of employee during service.” While observing that, “In this case the young doctor’s family has right to know whether they are entitled to compensation, if so, why not one crore rupees as given to officer killed on duty? State has to explain reasons for not treating a doctor on par with police,” CIC directed Chief Minister Office to provide the information sought by the appellant and in case her application is rejected, the reasons for rejection. CIC also directed Chief Minister Office to help the Chief Minister of Delhi to consider forming a uniform policy of providing compensation to families of government employees. [Anita Singh v. Health & Family Welfare Department, GNCTD, 2016 SCC OnLine CIC 7169, decided on May 31, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While expressing concern over pollution caused due to illegal disposal of effluent and waste, NGT directed Century Pulp and Paper Ltd. to pay Rs 30 lakh as environmental compensation for failing in managing pollution caused due to the effluents discharged in the stream which joins Gola River which flows into Ram Ganga and finally into Ganga. “The effluents exceeding the permissible norms being released in the environment are bound to cause environmental imbalance placing the flora and fauna under illegitimate stress and in the long run such effluents are bound to have deleterious effect on the environment. Considering the period of industrial activity and the volume of daily effluent generated we are of the considered opinion that the respondent no. 6- paper industry is liable to pay damages of Rs 30 lakhs,” the Tribunal noted. Said directions of the Tribunal came upon an application filed by an environmental activist and Member Secretary of organisation “People for Animals for Uttrakhand”, seeking directions to immediately stop discharge of harmful toxic effluents without any treatment and disposing wastes in forest and other revenue areas. After going through all the material on record, NGT noted that the paper industry had contributed to the environmental pollution in some measure and the degree of contribution to pollution is immaterial while deciding the liability of polluter. After imposing fine upon the Paper Company, NGT also constituted a team of senior scientists from the department of Environment Science, University of Jammu, Central Pollution Control Board (CPCB) and IIT Roorkee, to carry out survey and study of the area and the Gola River to ascertain environmental degradation caused and also suggest remedial measures for restoration of environment. Century Pulp and Paper Ltd. was also directed to pay a cost of Rs three lakh to the applicant. [Gauri Maulekhi v. Union of India, Original Application No. 486 of 2014, decided on May 4, 2016]

Case BriefsHigh Courts

Allahabad High Court:  Deciding the question as to whether orders of Human Rights Commission to make payment of compensation or damages are mere recommendations, the Bench of Dr Dhananjaya Yeshwant Chandrachud, C.J. and Yashwant Varma, J. observed that  “Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion.

The deceased was an undertrial prisoner lodged in the district jail in Muzaffarnagar and suffering from chronic lung disease. The treatment record indicated that he was provided treatment only from 15-5-2012 and he died on 21-5-2012. Though he had been admitted to jail on 9-9-2011, until 15-5-2012, neither medical check up was carried out to control or treat his lung disease nor was he sent to a competent medical facility until his condition had deteriorated. After an inquiry, finding a case of negligence on the part of jail officials in not providing adequate medical treatment, the Commission recommended the grant of compensation of Rs 2 lakhs to his next of kin. Subsequently, the Commission directed the State Government to report compliance of the same along with proof of payment, which order is under challenge here.

The petitioner’s contention was that the power of the Commission under Section 18(a)(i) of the Protection of Human Rights Act, 1993 was to “recommend” to the Government or authority concerned to make payment of compensation or damages to the complainant or victim or the members of his family and since the Commission’s power being recommendatory in nature, the directive to furnish proof of compliance was contrary to law and liable to be set aside.

The basic question is whether the use of the expression “recommend” in Section 18(a) can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. The Court observed that “to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. The Commission is entitled to do so where it finds either a violation of human rights or a negligence in the prevention of a violation of human rights.”

The Court held that  “While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated. The provisions of the Act which have been made to enforce the constitutional protection of life and liberty by enabling the Commission to grant compensation for violations of human rights would be rendered nugatory. A construction which will produce that result cannot be adopted and must be rejected.”  [State of Uttar Pradesh  v. National Human Rights Commission, Writ Petition (C) No. 15570 of 2016, decided on  April 8, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While observing that the compensation granted by the State Commission in a case of loss of luggage of a passenger in one of the flights of SpiceJet Airlines, is on the lower side, NCDRC imposed an additional costs of Rs 10,000 upon the Airlines and dismissed the revision petition filed by the Airlines in the matter. Earlier, the complainant lost one out of five registered “check-in” baggages during his flight. It was alleged by the Complainant before the Consumer Forum as well as Tripura State Commission that the said baggage contained goods, such as Sony Video camera, Sony Cyber shot digital camera, cosmetics and clothes, valued at Rs.90,000/-. The Consumer Forum as well as Tripura State Commission decided in the favour of the complainant and directed the Airlines to pay Rs 50,000 to the complainant. Thereafter, the Airlines approached the National Commission against the said orders alleging that the amount awarded to the complainant was on the higher side. After perusal of material on record and hearing both the parties, NCDRC observed, “the consumer court is bound to take the ‘down to earth’ view. It must be borne in mind that a hand-baggage/attache, without any contents, itself costs about Rs.9,000/- to Rs.10,000/-. The statement made by the complainant clearly mentions that the said luggage contained goods worth Rs.90,000/-.” While holding that the deficiency on the part of the Airlines stands established, NCDRC confirmed the order passed by the Consumer Forum. “The compensation already granted by the Fora below is on the lower side. We, therefore, dismiss the revision petition with costs of Rs.10,000/- U/s 26 of C.P. Act. The said amount of Rs.10,000/- be paid by the petitioners, to the respondent/complainant, within 30 days’, from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till realization, ” NCDRC noted while dismissing the petition. [SpiceJet Ltd. v. Atanu Ghosh, 2015 SCC OnLine NCDRC 3959, decided on November 23, 2015]

Case BriefsHigh Courts

Delhi High Court– Deciding on a writ petition filed wherein it was sought to quash Section 129 of the Railways Act, 1989 as ultra vires Articles 14 and 21 of the Constitution; to quash the Railway Accidents and Untoward Incident (Compensation) Rules, 1999 providing for Rs.4,00,000/- as the maximum amount of compensation in case of death or permanent disability and to direct the respondents to revise the upper limit of the compensation, a bench consisting of G.Rohini C.J and R.S Endlaw J. observed that there is no merit in the contention of the petitioner that the very object of establishing the Railway Claims Tribunal is defeated as the intention of constitution of the Railway Claims Tribunal is to provide an expeditious remedy to the victims of accidents and the claimant can also choose to claim higher compensation based on any other statutory provisions as provided under Section 128 of the Act by initiating proceedings before the appropriate forum.

In the instant case the petitioner contended that Rule 4 of the Rules and Section 129 of the Act which conferred unguided power on the delegate are liable to be declared illegal and should be quashed. The Court rejected this contention relying on Rathi Menon vs. Union of India, (2001) 3 SCC 714 wherein it was held “What the legislature wanted was that the victim of the accident must be paid compensation and the amount must represent a reality which means the amount should be fair and reasonable compensation. It is for the said reason that the Parliament left it to the Government to discharge that function”. Regarding the last contention of the petitioner, the Court directed the respondents 1 and 2 to consider the issue of updating the upper limit of compensation observing that it is obligatory on part of the Central Government to update the amount of compensation taking into consideration the substantial change in the money value and the impact it has caused in the cost of living. [Setu Niket v. Union of India, 2015 SCC OnLine Del 13460, decided on 19.11.2015]

Case BriefsSupreme Court

Supreme Court: Coming down heavily upon the State of Uttar Pradesh for falsely implicating a retired Forest Officer for owning disproportionate assets beyond his income, illegal mining and auction of Tendu patta leaves causing loss of revenue to Government and undue gain to the purchasers, the Court said that until and unless a fine balance is maintained between prosecuting a guilty officer and protecting an innocent officer from vexatious, frivolous and mala fide prosecution, it would be very difficult for the public servant to discharge his duties in free and fair manner.

The bench of Ranjan Gogoi and N.V. Ramana, JJ, considering the necessity to fill the existing gap, said that the efficiency of a public servant demands that he should be free to perform his official duties fearlessly and without any favour and that the protection to an honest public servant is required not only in his interest but in the larger interest of society.

Considering the age and trauma suffered by the petitioner who spent about 11 days in jail and fought the legal battle for about a period of 10 years before various forums and more particularly in the absence of any proved charges of corruption against the petitioner, the Court directed the State Government to pay Rs. 10 Lakhs to the petitioner within 3 months as compensation. [Dr. Ram Lakhan Singh v. State Government of Uttar Pradesh, 2015 SCC OnLine SC 1177decided on 17.11.2015]

Case BriefsSupreme Court

Supreme Court: The questions that came before the bench of H.L. Dattu, CJ and Arun Mishra, J were whether in the wake of lease agreement entered into by registered owner with Karnataka State Road Transport Corporation (KSRTC), the registered owner and insurer along with KSRTC can be fastened with the liability to make payment to the claimants and that whether KSRTC can recover the amount from registered owner and its entitlement to seek indemnification from insurer.

Taking note of the definition of the term ‘owner’ as defined under Section 2(30) of the Motor Vehicle Act, 1988, the Court said that under the MV Act, the owner means a registered owner and where the agreement on hire-purchase or an agreement of hypothecation has been entered into or lease agreement, the person in possession of the vehicle is treated as an owner. It was held that the KSRTC being in actual control of the vehicle would also be liable to make the compensation, however, it can recover the amount from the registered owner or insurer, as the case may be. Regarding the liability of the insurer, it was held that the insurer cannot escape the liability, when ownership changes due to the hypothecation agreement It was further held that In the case of hire also, it cannot escape the liability, even if the ownership changes. Even though, KSRTC is treated as owner under Section 2(30) of the MV Act, the registered owner continues to remain liable as per terms and conditions of lease agreement lawfully entered into with KSRTC.

The Court, after referring to many decisions of this court, held that registered owner, insurer as well as KSRTC would be liable to make the payment of compensation jointly and severally to the claimants and the KSRTC in terms of the lease agreement entered into with the registered owner would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer.[ Managing Director, K.S.R.T.C. v. New India Assurance Co.Ltd.,2015 SCC OnLine SC 1044, decided on 27.10.2015]

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): NCDRC has imposed a fine of Rs five lakh upon Jalandhar Improvement Trust, for abusing the process of law and filing meritless appeals before various consumer foras in order to cover up its own fault and negligence. “No leniency should be shown to litigants who in order to cover up their own fault and negligence, goes on filing meritless complaints/ appeals in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the other party of the fruits of the decree must be dealt with heavy hands,” NCDRC observed. Earlier, in the year 2011, Jalandhar Improvement Trust framed a ‘Development Scheme’ for allotment of residential plots in Surya Enclave Extension at Jalandhar and after taking substantial amount of money from the respondents, the appellants issued allotment letters to them, allotting specific plots. However, appellants failed to handover possession of the plots to the respondents for more than 3 years. The legal defence of Trust was that acquisition of land for the aforesaid scheme was challenged by various land owners by way of various writ petitions before the Punjab and Haryana High Court and there was a stay, hence, appellants were not in a position to handover the possession of the plots. When the respondents approached Punjab State Consumer Commission, it directed Jalandhar Improvement Trust to refund Rs.28,22,950/-along with interest at the rate of 9% per annum from the date of filing of the complaint till the date of payment and to pay Rs.2,00,000/- as compensation along with  Rs.5,000/- as litigation costs. After perusal of documents, NCDRC also observed that. “It was well within the knowledge of the Appellant-Trust, that there was an impediment in allotment of the plots in question. In spite thereof, Appellant-Trust had gone ahead and allotted plots in question to the respondents, which it could not have done so. In this manner, appellants have played fraud with the general public and thus collected huge amount of money.” While referring to various judgments of Supreme Court, NCDRC held strict stand towards frivolous and uncalled for litigations and noted that if any litigant approaches the court of equity with unclean hands, suppress the material facts, make false averments in the complaint/ appeal and tries to mislead and hoodwink the judicial Forums then his complaint/ appeal should be thrown away at the threshold. NCDRC also held that the said act of Jalandhar Improvement Trust is a “deceptive practice” which falls within the meaning of “unfair trade practice” as defined under the Consumer Protection Act, 1986. “Such type of unscrupulous act on the part of builders should be dealt with a heavy hand, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plot, on one pretext or the other,” Commission added. NCDRC further directed the appellants to pay a sum of Rs 2.5 lakh out of Rs 5 lakh to the respondents and deposit the rest Rs 2.5 lakh in the Commission’s Consumer Legal Aid account. Jalandhar Improvement Trust v. Munish Dev Sharma,  2015 SCC OnLine NCDRC 919decided on 01.07.2015

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): “The corporate hospitals and specialists, as might be expected, must perform at a higher level than other hospitals/general practitioners. They, after all, represent themselves as possessing highest standard facilities and care; also possess superior skills and additional training. The hospital charges and the doctor’s fees normally reflect this,” held NCDRC while holding the attending gynecologist and Indraprashta Apollo Hospital guilty of medical negligence and directing them to pay Rs 1 crore in compensation. This judgment was pronounced in a complaint filed by a couple, whose baby suffered mental disability due to “negligence” of the doctor at the time of delivery. The woman, who conceived after several years of infertility treatments, was admitted to Apollo hospital for delivery in June 1999. As a result of “substandard care during labour”, the child suffered birth asphyxia resulting in cerebral palsy due to negligence at the time of birth. As the baby developed complications two months later, the parents took her to AIIMS where EEG and CT scan revealed that she was severally affected by atrophy of brain. The disability board of AIIMS, certified that the baby was suffering from 95% disability. Alleging medical negligence the couple approached NCDRC in 2002. The child, who underwent treatment for multiple health problems at several hospitals, including AIIMS, died at the age of 12 years, on January 15, 2012. After perusing the relevant documents and medical records of the mother and child, Commission found the attending gynecologist and Indraprashta Apollo Hospital guilty of medical negligence and noted, “Substandard care to the patient during labour resulted poor outcome despite using modern technology of cardiography (CTG). Inability to interpret the CTG trace, i.e., poor pattern recognition, failure to correlate to the pathophysiology that causes the CTG changes, not taking into consideration the clinical situation that may suggest foetal distress and delay in taking appropriate action due to poor communication and team work were reasons for the poor outcome.” While fixing total compensation of Rs 1 crore, the Commission clarified that out of the total compensation Indraprastha Apollo Hospital, would pay Rs 80 lakh and the gynecologist would pay Rs 20 lakh to the complainant. During the course of proceedings, the Commission also found that the hospital had filed “tampered” medical records of the mother’s treatment, hence, punitive cost of Rs 10 lakh was also imposed on Indraprastha Apollo Hospitals, which was directed to be deposited in the Consumer Legal Aid Account, NCDRC. (Indu Sharma v. Indraprashta Apollo Hospital, 2015 SCC OnLine NCDRC 11, decided on April 22, 2015)

Tribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): While rejecting the contention of East Delhi Municipal Corporation (EDMC) that the lapse due to which a two year old boy was electrocuted in a Hospital in Delhi was of the contractor and officials of EDMC were not liable for the incident, NHRC recommended a relief of Rs.1.5 lakh to the relatives of the deceased. Earlier, a two year old child was electrocuted on September 3, 2012 in Swami Dayanand Hospital, Delhi, where his parents were working as labourers on the construction site of a new block. In response to a show cause notice issued to EDMC, it was submitted that though no lapses can be attributed on the part of the concerned officials, stern warning had been issued to them to be careful in monitoring of works of this nature. It was further informed that on the basis of the plea bargain, the court had already convicted the contractor’s security guard and the contractor had also paid Rs 50,000 to the boy’s father as compensation. The Commission observed that it was not the sole responsibility of the contractor to check safety measures regarding sub-meter or other electrical installation done for the execution of the work by EDMC and the officials of EDMC were also responsible to monitor the work. The Commission further noted that as the officials of EDMC failed to comply with their duties, it resulted in the death of the child and EDMC cannot escape the liability to pay compensation. As the compensation of Rs 50,000 was found to be inadequate by the Commission, an additional amount of Rs 1.5 lakh was also recommended as compensation. (Source: nhrc.nic.in, Dated: April 22, 2015)