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Supreme Court: The Court has asked CBI to investigate within 7 days the mysterious case of the accident in which the Unnao rape survivor was seriously injured along with her lawyer while her two aunts were killed in Rae Bareli on Sunday. The investigation is to be conducted by Secretary General under supervision of sitting SC judge nominated by CJI, to ascertain whether there was any lapse/negligence by registry officials in delay in processing letter of Unnao rape victim’s mother to CJI.

Ranjan Gogoi, CJ gave the direction to the agency after dismissing Solicitor General of India Tushar Mehta’s plea for a month’s time for completing the probe. CJI said,

 “A month? Probe should be completed within 7 days in the accident case, however, as an exception, CBI can take another week, but in no circumstance shall the probe extend beyond a fortnight.

The Court has transferred the trial of all the cases related to Unnao rape incident from Uttar Pradesh to Delhi and the designated judge in Delhi will commence the trial on day-to-day basis and complete the trial within 45 days.

As an interim measure, the Court has directed the UP government to pay Rs 25 lakh as compensation to the victim and also directed that security & protection be granted to the victim, her lawyer, mother of the victim, the four siblings of the victim, her uncle, and immediate family members in the village in Unnao.

Earlier in the day, the CJI ordered the CBI to present the status of the investigations after the agency was given charge of the probe into the accident and the FIR that included murder charges against rape accused and BJP MLA Kuldeep Sengar.
When the SG said the Investigating Officer was out of station and sought time till tomorrow morning for the agency to submit a report, the CJI dismissed it asking CBI to depute some ‘responsible’ official who can gather the information over phone and present it to the court. CBI Joint Director Sampat Meena, a woman officer, appeared before the bench and gave the status of the probe into the two cases.

On July 28, a truck rammed into the vehicle in which the Unnao rape survivor, her counsel and two aunts were travelling to Raebareli. While she and her lawyer sustained grievous injuries, her aunts were killed on the spot. The Unnao rape
survivor and her lawyer, who is being treated at King George’s Medical University are stable, the hospital said on Wednesday.

The Uttar Pradesh Police filed a case of murder against BJP MLA Kuldeep Singh Sengar and nine others in connection with the accident. Meanwhile, the BJP has expelled MLA Kuldeep Singh Sengar amidst the controversy.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: When the bench of Dr. DY Chandrachud and Hemant Gupta, JJ was tasked with determining whether a death due to malaria occasioned by a mosquito bite in Mozambique, constituted a death due to accident, it held that the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident.

When can insurance be claimed:

As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition.

“To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone.”

Ruling:

It was argued that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. The Court, however, did not agree with the said submission as the insured was based in Mozambique. According to the World Health Organization’s World Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally.

Noticing that it is on record that one out of three people in Mozambique is afflicted with malaria, the Court said that since the death of the insured in the present case was caused by encephalitis malaria,

“It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance.”

[National Insurance Co. v. Mousumi Bhattacharjee, 2019 SCC OnLine SC 419, decided on 26.03.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The bench comprising of S.M. Kantikar and Dinesh Singh, Members, while dealing with an appeal filed against the order of State Commission, held that murder of an insured person must be treated as an accidental death if the same is not the result of any deliberate act of the insured himself.

In the instant case, respondent’s father (insured) had taken a personal accident shield insurance policy from the appellant-insurer for an assured sum of Rs 20 lakh which was renewed from time to time. On a particular day, when he did not return home from his office, his family lodged a missing person complaint subsequent to which it came to light that respondent’s father had been murdered by a few persons in relation to some property dispute. Respondent filed a death claim with the appellant but it was repudiated on the ground that the death was not due to an accident but was a case of murder simpliciter. Aggrieved by the repudiation, respondent was constrained to approach the State Commission which directed the appellant to pay Rs 20 lakh along with interest. The said order of State Commission was the subject matter of challenge in the present appeal.

The main question for determination was as to whether the murder that took place in the instant case would fall within the scope of the term ‘accident’.

The Commission perused the insurance policy and noted that nowhere was it mentioned that the appellant would not be liable to pay the amount of insurance in case of murder. Relying upon the judgment of Apex Court in Rita Devi v New India Assurance Company Ltd., (2000) 5 SCC 113, it was observed that if the immediate cause of injury is not a result of any deliberate or willful act of the insured and the occurrence of accident is unexpected on the part of insured then a murder must be counted as an ‘accident’. The Commission also relied on the contra proferentum rule applicable to insurance policies and stated that in case of ambiguities in the insurance policy, interpretation has to be done in favour of the insured.

On the strength of the aforesaid reasoning, it was held that the murder of respondent was an accident within the terms and conditions of the insurance policy. Consequently, the instant appeal stood dismissed and the order of State Commission was upheld. [Royal Sundaram Alliance Insurance Co. Ltd. v Pawan Balram Mulchandani,2018 SCC OnLine NCDRC 377, decided on 25-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, C.J. and V. Kameswar Rao, J. dismissed a petition filed by a practicing advocate, in public interest, challenging the government notification increasing the speed limit for plying motor vehicles on national highways.

The Notification impugned, dated 06-04-2018, was issued by Ministry of Road Transport and Highways, Government of India whereby speed limit was increased for motor vehicles from 100 kmph to 120 kmph. Further, speed limit for motorcycles was increased from 60 kmph to 80 kmph. The petition was filed on the ground that it violated the fundamental right to life available to citizens under Article 21 of the Constitution; the consequence of increasing the speed limit would be loss of life due to increase in number of accidents which may result due to indiscreet plying of vehicles.

The High Court was of the view that the question of permitting plying of vehicles at a particular speed on a particular road like national highway is an administrative action, an executive action, in fact, a policy decision taken by administrative authorities. Such decision is taken by the authorities after due consideration of various factors based on expert and scientific evaluation. The Court held that merely because there was a possibility of accident due to plying of vehicles on the road on a speed, which according to the petitioner was too high, was no reason to interfere into the matter. It was purely a  policy decision within the domain of legislative power of government; it is not for writ courts to interfere in such matters unless statutory provisions in doing so are found to be breached or violated. Therefore, the petition was dismissed. [Siddhartha Singh v. Union of India, 2018 SCC OnLine Del 11138, dated 05-09-2018]

Case BriefsForeign Courts

‘Sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’

Supreme Court of Canada: The 7-Judge Bench comprising of Abella, Moldaver, Karkatsanis, Wagner, Gascon, Côté and Rowe JJ., delivered a 6:1 majority decision by stating that refusing to provide a breath sample especially so when a death occurs clearly calls for a serious criminal offence set out in Section 255(3.2) of the Criminal Code.

In the present case, Mr Suter was arrested for driving his car onto a restaurant patio, which caused a fatal accident of a two-year-old kid. When the stated accident took place, Mr Suter was having a heated argument with his wife and while parking the car in front of the restaurant, he accidentally pulled the gas pedal instead of the brake and drove into the patio. On being arrested, he spoke to his legal aid lawyer who advised him not to give his ‘breath sample’.

Further, Mr Suter pleaded guilty for refusing the breath sample after causing an accident where someone died for which the sentencing judge gave a sentence of four months plus a thirty-month driving ban. Ideally, Mr Suter should have been sent to the jail of over 3 years but his sentence was lowered on the reasoning that he was given wrong advice by his lawyer which reduced his burden of moral blame. But, the Court of Appeal increased his sentence to 26 months.

On analysing the facts and circumstances of the case Michael Moldaver  J. speaking for the majority placed an essential remark on the sentence placed by the sentencing judge and Court of Appeal. According to the majority, the sentence given of 4 months in prison by the sentencing judge was said to be inappropriate as the reasoning behind the sentence was highly concentrated towards Mr Suter not being drunk and receiving ill-legal advice, though his point on reduced sentence than normally given in other cases was a valid one as the circumstances in the instant case were of ‘unique’ nature. Further, the error caused by the Court of Appeal was of increasing the sentence due to the recasting of charges.

Therefore, in the instant case, the majority took note of all the essentialities of the case along with the sentences provided by the lower courts and stated that Mr Suter’s sentence be reduced to one of time served just over 10 and a half months without interfering with the prohibition on driving and allowing the appeal by re-sentencing and considering all the mitigating factors stated in the appeal.[R v. Suter,2018 SCC OnLine Can SC 12: 2018 Supreme Court Cases 34, decided on 29-06-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Vivek Singh Thakur, J. upheld the decision of the Commissioner directing the petitioner-insurer to pay the balance amount to the respondents-claimants, which was deducted as TDS from the compensation paid to the respondents.

The claimants claimed compensation under Section 3 of Employees’ Compensation Act for the death of the deceased who died in an accident while working as a conductor. The Commissioner allowed the claim of the respondents and awarded Rs 3,79,592.50 as compensation to the claimants along with interest. The insurance company deposited the amount as awarded; however, only after deducting 20% of the amount as Tax Deducted at Source (TDS). Subsequently, in the execution proceedings, the Commissioner ordered the attachment of properties of the insurer for the realization of the balance of amount not paid (amount deducted) by the insurer. Aggrieved by the same, the insurer approached the High Court.

The High Court perused the record and while referring to Section 194-A Income Tax Act 1961, noted that compensation awarded under Motor Vehicles Act or Employees’ Compensation Act in lieu of death of a person or bodily injury suffered in a vehicular accident, is a damage and not an income and cannot be treated as taxable income. Further, the interest paid on the amount of compensation is also a part of the compensation. The Court held that TDS deducted by the insurer on the compensation awarded to the claimants was illegal. Accordingly, Respondent 6, Income Tax Officer, was directed to return the TDS amount to the petitioner-insurer which was further directed to be passed on to the claimants. [National Insurance Company Ltd. v. Dil Kumari, 2018 SCC OnLine HP 665, dated 01-06-2018]

Supreme Court

Supreme Court:  The instant case arose under Sections 106 and 88 of the Factories Act, 1948 as indicated by the facts wherein a fire accident occurred at the 150th Foundation Day of TISCO, resulting in loss of human life and property. In accordance with the abovementioned Sections of the Factories Act, 1948 and Rule 86 of Bihar Factory Rules, 1950, a formal intimation of the accident was given to the Inspector of factories and investigation was conducted of which the Inspector was a part and a report was submitted accordingly. The question was that whether the complaint of the fire accident was filed within 3 months of the date when the commission of the offence took place, as under Section 106 of Factories Act thereby whether the inspector had the knowledge of the occurrence.

The respondent counsel Mr. Tapesh Kumar Singh contended that the complaint had been filed within 3 months thus the provisions of Section 106 have been abided by. Also present was Mr. F.S. Nariman, counsel for the appellants. The High Court previously ruled that the date of accident and the date of knowledge of the commission of the offence were different in the instant case.

The Court observed that in the instant case the Inspector was himself part of the team, which conducted the preliminary inquiry and thus it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector remained ignorant that the offences in question have been allegedly committed. The Court thereby observed that inspector had knowledge of the occurrence at least on the day when a detailed inquiry was conducted by the Chief Inspector of Factories. Therefore the Court set aside the High Court decision.

J.J Irani v. State of Jharkhand, Criminal Appeal No. 1668-70 of 2014, decided on 08.08.2014

To read the full judgment, refer SCCOnLine