Case BriefsHigh Courts

Tripura High Court: A writ petition for the claim of compensation in a medical negligence case was filed before a Single Judge Bench comprising of Ajay Rastogi, CJ.

Facts of the case are that the petitioner is the father of the deceased child who incurred a head injury. The child was shifted immediately to a hospital but after three days after the accident, he was moved to AGMC & G.B.P. Hospital, where he succumbed to his injuries. Petitioner alleged medical negligence in criminal complaint after which FIR was registered. For purpose of examining the same, a committee was constituted by the order of Director of Health Services. The report of committee examined the matter and concluded that treatment given to the patient was in accordance with the existing protocol and no negligence was found on part of the doctors involved in the treatment of deceased.

 The High Court was of the view that under limited scope of judicial review under Article 226 of the Constitution of India it is not possible to examine the allegation of medical negligence as the parties have not yet provided evidence in respect of their respective claims. Therefore, Court observed the quantification of compensation to be out of their scope due to the above reasons and the writ petition was dismissed. [Krishna Sarkar v. Government of Tripura,2018 SCC OnLine Tri 209, Order dated 13-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Rohinton Fali Nariman and Indu Malhotra, JJ. disposed of an appeal filed challenging the compensation awarded by the Punjab and Haryana High Court under Motor Vehicles Act, 1988.

The deceased was riding on a bike when he was hit by the vehicle driven by Respondent 3 which resulted in his death. The claim petition filed by dependants of the deceased under Section 166 of MV Act was allowed by the Motor Accident Claims Tribunal which was further enhanced by the High Court on an appeal preferred by the dependants. Aggrieved thereby, the insurance company filed the instant civil appeal.

The Supreme Court perused the orders of the MACT as well as the High Court and found that the order needs to be modified. The Court while disposing of the appeal, inter alia, added, to the already existing heads, two more heads of compensation. Relying on National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, the Court held that Loss of Consortium and Loss of Estate are other conventional heads under which compensation is awarded in the event of death. In legal parlance, consortium is a compendious term which encompasses spousal consortium, parental consortium, and filial consortium. The Court observed that the MV Act being a social welfare and beneficial legislation, it was duty-bound to provide just compensation irrespective of whether plea in that behalf is raised or not by the claimant. In exercise of power under Article 142 of the Constitution, the Court awarded Rs 15,000 towards Loss of Estate. In regard to consortium, it was observed that right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased which is a loss to his family. With respect to a spouse, it would include sexual relations. Reference, in this connection, was made to Rajesh v. Rajbir Singh, (2013) 9 SCC 54. Following the principles of awarding compensation under Loss of Consortium as laid down in Pranay Sethi, the Court awarded a compensation of Rs 80,000 as compensation towards loss of filial consortium. The appeal was accordingly disposed of. [Magma General Insurance Co. Ltd. v. Nanu Ram,2018 SCC OnLine SC 1546, decided on 18-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: An appeal was allowed by a Single Judge Bench comprising of Harinder Singh Sidhu, J., filed against an award of Motor Accidents Claims Tribunal, where appellants were made jointly and severally liable to pay compensation instead of Insurance Company.

The facts of the case are that an accident took place between a motorcycle and a bus due to which one person died. The brother of the deceased filed FIR under Sections 279, 304-A of Indian Penal Code. The Tribunal awarded compensation concluding the accident to be a result of rash and negligent driving of bus driver. While imposing liability Tribunal found the bus to be insured and was of the view that under Section 6 of the Motor Vehicles Act, 1988 no driver can validly hold two driving license and hence driver and its owner cannot escape liability by first showing a fake license and then another license.

Appellant contended that if one license is found to be fake then the question of the existence of two licenses cannot be sustained. Whereas respondent agreed with the findings of Tribunal. High Court was of the view that the validity of driving license was not checked by the respondent i.e. insurer company, therefore, the same is presumed to be valid. Court viewed that onus to prove the genuineness of driving license is on respondent and as the respondent failed to show that the second license was also fake it cannot escape its liability. Though a provision is there to that effect that a person cannot hold more than one driving license it cannot be said that on finding one license to be fake another license cannot be valid. Therefore, the appeal was allowed and insurance company was made liable to pay the compensation amount. [Matan Shiv Shakti Co. Op. Tpt, Society Ltd. v. Cholamandalam MS General Insurance Co., 2018 SCC OnLine P&H 1295, decided on 11-09-2018]

Case BriefsSupreme Court

Life commands self-respect and dignity.

                                        -Dipak Misra, CJ

Supreme Court: The bench comprising of Dipak Misra, CJ and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. awarded a compensation of Rs 50 lakhs to the appellant while disposing of an appeal filed against the judgment of a Division Bench of Kerala High Court whereby the decision of the Single Judge quashing the order of State Government declining to take action against the erring police officers concerned was reversed.

In January 1994, a criminal case was registered against one Mariam Rasheeda, a Maldivian National under Section 14 of the Foreigners Act, 1946 and Paragraph 7 of the Foreigners Order. While being interrogated by Kerala Police and Intelligence Bureau, she made certain confessions which led to registration of another criminal case under Sections 3 and 4 of the Indian Official Secrets Acts, 1923 alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO. In November 1994, investigation of both the cases was taken over by the Special Investigation Team headed by Respondent 1. Pursuant to this, the appellant –  erstwhile scientist at ISRO – was arrested along with other persons. In December 1994, the investigation was transferred to the Central Bureau of Investigation. After the investigation, the CBI submitted a report before the Chief Judicial Magistrate, Ernakulam, under Section 173(2) CrPC stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court’s order and all the accused were discharged. In June 1996, State of Kerala, being dissatisfied with the CBI report, issued a notification and decided to conduct re-investigation of the case by the State Police. Subsequently, the Supreme Court in K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. Another writ petition was filed before the High Court wherein a Single Judge quashed the order dated 29.06.2011 passed by the State of Kerala whereby the Kerala Government had decided not to take any disciplinary action against the members of the SIT (erring police officers) and consequently remitted the matter to the State of Kerala for reconsideration and passing further orders within three months. The said decision was reversed by a Division Bench vide the order impugned. It was urged by the appellant that the prosecution launched against him by the Kerala police was malicious on account of two reasons. Firstly, the said prosecution had a catastrophic effect on his service career as a leading and renowned scientist at ISRO, thereby smothering his career, lifespan, savings, honour, academic work as well as self-esteem and consequently resulting in total devastation of the peace of his entire family which is an ineffaceable individual loss. Secondly, the irreparable and irremediable loss and setback caused to the technological advancement in Space Research in India.

The Supreme Court, at the outset, observed that to say the least, the delineation by the Division Bench was too simplistic. It was stated that the entire prosecution initiated by the State police was malicious and caused tremendous harassment and immeasurable anguish to the appellant. It wasn’t a case where the accused was kept under custody and, eventually, after trial, he was found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to CBI. After comprehensive enquiry, the closure report was filed. An argument was advanced by the respondents that the fault should be found with CBI but not with the State police, for it had transferred the case to the CBI. The said submission was noted only to be rejected. The criminal law was set in motion without any basis. It was initiated on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. According to the Court, such situation invited the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity. The Court made references to D.K. Basu v. State of W.B., (1997) 1 SCC 416; Joginder Kumar v. State of U.P., (1994) 4 SCC 260; Kiran Bedi v. Committee of Enquiry, (1989) 1 SCC 494; etc. In the words of the Court, reputation of an individual is an insegregable facet of his right to life with dignity. In the final analysis, the Court held that it can be stated with certitude that the fundamental right of the appellant under Article 21 had been gravely affected. There could be no scintilla of doubt that the appellant, a successful scientist having national reputation, was compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody made the appellant suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. Keeping in view the report of the CBI and the judgment in K. Chandrasekhar, The Court ordered the State to pay Rs 50 lakhs as compensation to the appellant. It was further held that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, the Court constituted a Committee which shall be headed by Justice D.K. Jain, a former Judge of Supreme Court. The Central Government and the State Government were directed to nominate one officer each so that apposite action could be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. The appeal was accordingly disposed of. [S. Nambi Narayanan v. Siby Mathews,2018 SCC OnLine SC 1500, decided on 14-09-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Hrishikesh Roy, CJ. and Jayasankaran Nambiar, J., framed suggestions with regard to fixing of compensation for flood-affected victims of the State of Kerala.

The writ petition by way of PIL was filed with regard to the absence of any specific and uniform criteria for ascertaining the adequate amount of compensation to be granted by the respondent to the flood-affected victims of the State. It has been highlighted that the Kerala State Legal Services Authority would act as a catalyst to this process by enhancing effective and equitable distribution of compensation among the victims.

The orders issued by the respondent under the Disaster Management Department marks for the preliminary compensation amount with respect to affected residential houses based on the level of inundation with respect to every individual house.

Henceforth the Court suggested that a uniform formula that takes into account such factors that are applicable in common to the different categories of persons must be applied. These factors shall include the level of inundation, the extent of holding of a person in that area and improvements made in the said holding etc. and shall be applied irrespective of nature of holding of the victim or his income level. The minimum compensation that was common to all victims shall be paid to the identified victim solely based on his claim presented with response to the published formula devoid of any further scrutiny as to its genuineness by the respondent. Further the victims shall be compensated with respect to their individual losses determined on case to case basis backed by a proof as to the amount of loss sustained by each victim and as a result it would ensure greater transparency with regard to this additional compensation plus the victims would be spared from running behind authorities for the same. Also, this additional compensation has to be decided to keep in consideration different categories of flood victims i.e. householders, businessman, farmers etc. based on nature and extent of the loss suffered by them.

Accordingly, the method to be adopted by the respondent in deciding the amount of compensation shall be submitted to the court within 10 days from the date of judgment.[P.K. Firoz v. State of Kerala, W.P (C) No. 29127 of 2018, order dated 04-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.C. Dharmadhikari and B.P. Colabawalla, JJ. dismissed an appeal filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal wherein it was held that Section 194-LA was not applicable in case at hand.

The facts of the case were that the assessee Development Authority had acquired land from hutment dwellers and paid compensation for rehabilitation. The Assessing Officer passed an order under Sections 201(1) and 201(1-A). He was of firm opinion that there had been acquisition of immovable property and the assessee, while compensating the hutment dwellers, was liable to deduct tax at source (TDS) as per the provisions of Sections 194-L and 194-LA. The assessees carried the matter in appeal before the Commissioner of Income Tax (Appeals) who held that the said sections were not applicable in the instant case. The decision was affirmed by ITAT. Aggrieved thus, the Revenue had filed the instant appeal.

The High Court perused the record and found that the order impugned did not require any interfere. The Court was of the view that the subject land always vested in the State. The hutment dwellers were encroaching squatters who had built illegal hutments on State land, they were trespassers. This being the case, there was no question of land being acquired by the assessee. It was an encroachment which was removed by the assessee and the encroachers were rehabilitated. This being the case, the Court was of the view that Sections 194-L or 194-LA had no application to the facts and circumstances of the case. The appeal was accordingly dismissed. [CIT v. Mumbai Metropolitan Regional Development Authority,2018 SCC OnLine Bom 2374, dated 06-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of N.V. Ramana and S. Abdul Nazeer, JJ. allowed an appeal filed by the appellant (insurer) against the judgment and order of Tripura High Court whereby the insurer was directed to pay compensation to the respondents (legal representatives of the deceased) as awarded by the Motor Accident Claims Tribunal, W.B.

On 20-5-2012, deceased Dilip Bhowmik was returning to his house driving his vehicle. Near the bridge of the Agartala Railway Station, he met with an accident and sustained grievous injuries. He was declared dead on arrival by the hospital. At the relevant time, the deceased was 43 years old. According to respondents, his monthly income was Rs 15,000. They filed a claim petition, pursuant to which the Tribunal passed an award granting compensation of Rs 10,57,800. Aggrieved by the same the insurer filed appeal before the High Court which accepted it’s contention that the deceased was not a third party. However, the High Court directed the insurer to pay the compensation with a rider that it should not be treated as a precedent. Aggrieved thus, the insurer preferred the present appeal.

The Supreme Court considered the submissions of the parties and perused the record. It was noted that it was an admitted position that the deceased was the owner-cum-driver of the vehicle in question. The accident occurred due to rash and negligent driving by the deceased. No other vehicle was involved in the accident. The deceased being the owner of the offending vehicle, was not a third party within the meaning of the Motor Vehicles Act, 1988. The Court referred to the decision in Oriental Insurance Co. Ltd. v. Jhuma Saha, (2007) 9 SCC 263 and observed that a claimant cannot maintain a claim on the basis of his own fault or rash and negligent driving. Therefore, the respondents being legal representatives of the deceased could not have maintained the claim petition filed under Section 166 of the Act. The Court held that the High Court was not justified in directing the insurer to pay compensation determined by the Tribunal. However, the respondents were held entitled to the indemnification extended to personal accident of the deceased which was limited to Rs 2 lakhs under the contract of insurance. The appeal was disposed of in the terms above. [National Insurance Co. Ltd. v. Ashalata Bhowmik,2018 SCC OnLine SC 1264, dated 31-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. allowed a writ petition filed for seeking a declaration that the acquisition proceedings under which the land of the petitioner was acquired have lapsed.

A notification was issued under Section 4 of the Land Acquisition Act, 1894 for acquisition of the subject land belonging to the petitioner. It was followed by a declaration under Section 6 vide which the subject land was finally acquired. An award of compensation to the petitioner was also rendered in 1985. However, the compensation was not paid till now. The petitioner submitted that since the compensation has not been tendered, the petitioners were entitled to a declaration that the acquisition proceedings have lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The High Court perused the record and considered submissions made by the parties. The Court found that there was no room for doubt that compensation had not been tendered to the petitioners, and thus, one of the two necessary ingredients of Section 24(2) of the Act of 2013 was met. Furthermore, having regard to the fact that the award of compensation was announced more than five years prior to the commencement of the Act of 2013, the case of the petitioners was covered by Section 24(2). Thus, according to the Court, the petitioners were entitled to a declaration that the acquisition proceedings initiated under the Land Acquisition Act were deemed to have lapsed. The order was made accordingly. [Satwant Singh v. Land and Building Department,  2018 SCC OnLine Del 10870, dated 27-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a husband’s challenge to the award of compensation to his divorced wife granted by the Additional Sessions Judge.

The appellant-husband and respondent-wife were married in 2003. Subsequently, they developed discord and the wife left the husband alleging harassment. The husband filed petition for restitution of conjugal rights which was allowed. However, even after that, the parties couldn’t live together. Thereafter, the husband filed a divorce petition on grounds of desertion by the wife. The said petition was allowed and the marriage between the parties was dissolved, which decree had become final. Subsequent to that, the wife filed an application for maintenance under Section 125 CrPC. The application was rejected by the Judicial Magistrate; however, on appeal, the Additional Session Judge allowed the same. Aggrieved by the order of the Additional Sessions Judge, the husband had filed the present petition.

The High Court perused the record and found that the facts stated above were the admitted position of the parties. Marriage between the parties was indeed dissolved by a decree of dissolution which had become final. The question before the  Court was whether, under Section 125 CrPC, the Court could grant maintenance to a wife who was divorced on grounds of desertion. For adjudication, the Court relied on the Supreme Court decision in Rohatash Singh v. Ramendri, 2000 (3) SCC 180  wherein it was held that even such a wife can claim maintenance under the section; however, it would be available to her only from the date on which decree for dissolution of marriage had been passed. Accordingly, the husband’s challenge to award of maintenance granted to the wife was dismissed. However, it was held that the wife would be entitled to maintenance only from the date of divorce decree, and not from the date of filing of an application under Section 125 as held by the Additional Sessions Judge. The petition was disposed of in the terms above. [Dnyaneshwar Eknath Kachre v. Sunita,2018 SCC OnLine Bom 2243, dated 24-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sunil Gaur, J. allowed an appeal filed against the order of the Motor Accident Claims Tribunal whereby the compensation awarded was ordered to be recovered from the appellant – owner of the insured vehicle involved in an accident.

Brief facts of the case are that on the fateful day, one Manoj Sharma was driving his motorcycle when he was hit by a water tanker being driven in a rash and negligent manner. The said water tanker was owned by the appellant. As a result of the accident, said Manoj Sharma died. On filing of the claim petition by the claimants under Sections 166 and 140 of the Motor Vehicles Act 1988, the Tribunal awarded a compensation of Rs 11,83,400 (which was subsequently increased to Rs 23,79,000 in an appeal connected with the instant appeal). The owner of the insured vehicle challenged the order on the ground that the Tribunal had erroneously granted recovery rights to the insurer.

The High Court perused the record and found that the insured vehicle was granted contract for watering of plants by the Delhi Government. The Court also referred to Section 66 of the Act. In view of the Court, since the insured vehicle was plying for the purpose of watering plants and for conservancy purpose in pursuance of the contract awarded to the owner, so, in light of sub-section 3(b) of Section 66, the requirement of obtaining permit was dispensed with. In such circumstances, the grant of recovery rights to the insurer could not be sustained. The order impugned was accordingly modified while putting full liability on the insurer to pay the compensation. The appeal was disposed of in the terms above. [Jagjeet Singh v. United India Insurance Co. Ltd., MAC Appeal No. 228 of 2013, dated 20-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Rohinton Fali Nariman and Indu Malhotra, JJ. allowed an appeal filed against the order of Bombay High Court passed in a claim under Motor Vehicles Act, 1988.

The appellant, 29 years of age, suffered multiple injuries in an accident with a car driven by Respondent 1. He suffered permanent disability to the extent of 75%. The Courts below found, on evidence, that Respondent 1 was driving the car rashly and negligently. As a consequence, the appellant lost his livelihood – job of a driver. It is pertinent to note that before the accident, he was drawing a monthly salary of Rs 8500. The appellant filed a claim petition before the Motor Accident Claims Tribunal which was partly allowed. However, dissatisfied with the quantum of compensation, an appeal was filed before the High Court which erroneously concluded that it would be just and appropriate if monthly income of the appellant was considered to be Rs 5000. Aggrieved thus, the appellant filed the instant appeal.

The Supreme Court, at the outset, observed that in cases of motor accidents leading to injuries and disablement, it is a well-settled principle that a person must be compensated for physical injuries as well as non-pecuniary losses suffered due to the injury. It was reiterated that the purpose of compensation under the Act is to fully and adequately restore the aggrieved to the position prior to the accident. Reference was also made to Yadav Kumar v. National Insurance Co. Ltd., (2010) 10 SCC 341; Sarla Verma v. DTC, (2009) 6 SCC 121 and Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. It was held that effect of permanent disability on the earning capacity of the injured must be considered while awarding the compensation. Considering all the facts, the Supreme Court computed the just compensation amounting to Rs 20,29,000 to be awarded to the appellant. The civil appeal was accordingly allowed. [Anant v. Pratap,  2018 SCC OnLine SC 1082, dated 21-08-2018]

Case BriefsSupreme Court

Supreme Court: A.M. Khanwilkar, J. delivered the judgment for CJ Dipak Misra and himself whereby the matter concerning the liability of the insurer to pay compensation in a motor accident claim was remanded back to the Allahabad High Court.

Respondents 1-5 filed a claim before the Motor Accident Claims Tribunal consequent to the death of one Sanoj Kumar. The deceased was going for morning walk when he was hit by a Bolero loader driven in a rash and negligent manner. The Tribunal absolved the liability of the insurer – Oriental Insurance Co. – on the finding that the driver of the said vehicle did not have a valid driving licence. However, the insurer was directed to compensation amount as determined with a liberty to recover the same from the owner and driver of the vehicle The said decision was affirmed by the High Court. Being aggrieved, the appellant – owner of the vehicle – filed the instant appeal.

The question before the Supreme Court was that ‘whether the Tribunal was right in holding that the insurer was not liable as the driver had a fake licence?’ The Court referred PEPSU Road Transport Corpn. v. National Insurance Co., (2013) 10 SCC 217 and Premkumari v. Prahlad Dev, (2008) 3 SCC 193. It was observed to be well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer’s liability would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the liability of the insurer. It was noticed that, in the present case, neither the Tribunal nor the High Court made any attempt to analyse as to whether the appellant was aware of the fake driving licence possessed by the driver. In such circumstances, the Court deemed it appropriate to relegate the parties before the High Court for fresh consideration of the matter only on question of liability of the owner or of the insurer to pay compensation. The appeal was disposed of in the terms above. [Ram Chandra Singh v. Rajaram,2018 SCC OnLine SC 959, dated 14-08-2018]

Case BriefsHigh Courts

Gujarat High Court: The Division Judge Bench of Akil Kureshi and BN Karia, JJ., addressed an appeal filed by the respondent company, challenging the judgment passed by the Motor Accident Claims Tribunal.

The respondent had gone through an accident because of which he had received some bodily injuries. The vehicle of the respondent was insured by the insurance company.  The overall impact of disability was assessed to be 41% of the whole body.

The main dispute that arose was regarding the amount of compensation that was to be given as loss of amenities. It was contended by the Tribunal that the award of loss of income was basically in disguise of loss of amenities relating the same to the disability percentage of the salary of the injured. And since the income of the deceased remained the same despite injuries, loss of earning capacity cannot be claimed.

It was held that since a government employee may not immediately either lose the job or suffer reduction in salary and that per se would not imply that injury has not affected the earning capacity of the sufferer. Thus the award granted to the petitioner would be a modest sum for loss of amenities of life, the appeal disposed of accordingly.[New India Assurance Co. Ltd v. Dominic Sebastian Vezhuvalil,2018 SCC OnLine Guj 1307, Order dated 02-08-2018]

 

 

Hot Off The PressNews

Supreme Court: The Division Bench comprising of Madan B Lokur and Deepak Gupta JJ., while delivering an order stated that the scheme proposed by National Legal Services Authority (NALSA) for compensating the victims of sexual assault, acid attack and other crimes require modification to “some extent”.

Background of the scheme:

The Supreme Court of India in Nipun Saxena v. Union of India, WP (C) No. 565 of 2012 had opined that “it would be appropriate if NALSA sets up a Committee of about 4 or 5 persons who can prepare Model Rules for Victim Compensation for sexual offences and acid attacks taking into account the submissions made by the learned Amicus. The learned Amicus, as well as the learned Solicitor General, have offered to assist the Committee as and when required. The Chairperson or the nominee of the Chairperson of the National Commission for Women should be associated with the Committee.”

Further, the committee had finalized the “Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes” and submitted the same before the Supreme Court on 24-04-2018.

As per NALSA’s scheme, the victim of gangrape in any part of the country would now get a minimum compensation of Rs 5 lakhs and up to a maximum of Rs 10 lakhs. Similarly, in case of rape and unnatural sexual assault, the victim would get a minimum of Rs 4 lakhs and maximum of Rs 7 lakhs as compensation. The scheme also says that victim of acid attacks, in case of disfigurement of face, would get a minimum compensation of Rs 7 lakhs, while the upper limit would be Rs 8 lakhs. In acid attack cases, if the injury was more than 50 percent, a minimum compensation of Rs 5 lakhs would be given, while the maximum would be Rs 8 lakhs.

Hence, in the present order, the Supreme Court stated that slight modifications in the above-mentioned scheme were required in order to embed the “child victims” under it as well.

[SOURCE: PTI]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of B.S. Walia, J. allowed an appeal filed against the order of the Motor Accident Claims Tribunal (MACT) awarding a compensation of Rs. 50,000 to the respondent even when the offending vehicle involved in the accident was unidentified.

The appeal was preferred by the insurance company- United India Insurance Co. Ltd., who was made liable to pay the above-mentioned amount of compensation to the respondent. The appeal required adjudication upon a single question- whether liability can be imposed under Section 140 of the Motor Vehicles Act 1988, in case the offending vehicle is unidentified? Learned counsel appearing for the appellant submitted that a separate provision, Section 161, existed for the cases where the offending vehicle involved in the accident is unidentified.

In order to settle the issue, the High Court perused both the Sections. The Court observed that Section 140 makes provision for the award of compensation amounting to Rs. 50,000 in cases of death or permanent disability, where the offending vehicle is identified. However, for hit and run cases, where the offending vehicle remains unidentified, Section 161 comes into play. That Section fixes the compensation amount at Rs. 25,000 in case of death and Rs. 12,500 in case of grievous hurt. Holding that there is a clear-cut difference in the provisions applicable to the two situations, the Court answered the question framed hereinabove, in negative. The appeal was accordingly allowed and the order of the MACT was set aside. [United India Insurance Co. Ltd. v. Kuldip Kaur, 2018 SCC OnLine P&H 843, dated 01-06-2018 ]

 

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench of  S. Talapatra J., addressed a petition seeking claim under the Employee’s Compensation Act, 1923 by stressing upon the categories of employees constituted under the definition of ‘employee’ under Section 2(dd) of the said Act.

The deceased for whom the compensation was being claimed by the appellant was an employee working under the ‘MGNREGA’ scheme. The Appellant has claimed the compensation under Section 4 of the Employee’s Compensation Act, 1923 stating that her husband died in the course of the employment as he suffered from chest pain during the time he was working on the land under the ‘MGNREGA’ scheme.

The Commissioner of Employee’s Compensation further in regard to providing clarity on the point of whether the employee was entitled to claim compensation under the above-referred act observed the definition of ‘employee’ under Section 2(dd) of the Employee’s Compensation Act, 1923, and in accordance to that in his opinion an employee under the scheme of ‘MGNERGA’ will not be covered under the said definition of ‘employee’ under the said Act.

Therefore, the Hon’ble Court, concluded by appreciating the submissions of the learned counsel of the parties along with no discrepancy on the submissions placed by the Commissioner of Employee’s stated that there is no material found which could cover the deceased under the definition of ‘employee’ in Section 2(dd) of the Employee’s Compensation Act, 1923 which lead to the dismissal of the appeal. [Rirasatnai Halam v. State of Tripura,2018 SCC OnLine Tri 115, order dated 12-06-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: An appeal filed by the Executive Engineer against the award of compensation passed in favour of Respondent 2, was dismissed by a Single Judge Bench comprising of Sanjeev Kumar, J.

Respondent 2 (an iron smith) was engaged as a labour by Respondent 3 (contractor) who worked with the appellant. A compressor rod was given by the appellant to Respondent 2 to carry out repairs. While working on the compressor rod, Respondent 2 sustained a certain injury which resulted in his arm getting amputated and thereby he suffered permanent disability. He preferred a claim petition before the Commissioner under Workmen Compensation Act, who awarded him a compensation amounting to Rs. 2,97,000 along with interest at 6% per anum. The appellant challenged the award contending inter alia that there was no privity of contract between him and Respondent 2, therefore, liability to compensate him could not be fastened on the appellant.

The High Court, after duly considering the submissions made by the appellant, observed that his contention was fallacious. The Court noted that it was undisputed that Respondent 3, who had engaged Respondent 2 as a labour, worked with the appellant as a contractor. Respondent 2 was engaged to carry out the work of the appellant. Furthermore, the job of repairing the iron rod, that was the direct reason for the injury, was assigned to Respondent 2 by the Junior Engineer of the appellant. The Court categorically stated that the appellant being a principal employer was liable to pay compensation to Respondent 2 on account of permanent disablement suffered by him during and in the course of his employment with the appellant. In such circumstances, the High Court dismissed the appeal holding the appellant liable to compensate Respondent 2 as awarded by the Commissioner. [Executive Engineer, PWD v. Commissioner, Workmen’s Compensation,  2018 SCC OnLine J&K 367, dated 04-06-2018]

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]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: In a landmark judgment delivered by M.J. Lowe J., in the case of a minor being attacked by dog and claiming compensation in that reference, the High Court granted compensation.

The minor was below the age of 10 years and was attacked by the dog owned by the defendant while sitting on the brick wall separating the two properties. In a statement by defendant it was stated on his part that he had earlier warned the minor to not climb the wall in his absence showing his concern to not be able to control the dog (Bull Mastiff).

The Court analysed the case by discussing the points of law thoroughly. To start with “The Law of Delict in South Africa” wherein it has been explained, “the actio de pauperie for harm caused by domestic animals” in which owner of a domestic animal is strictly liable for the harm caused to another person in contradiction to its nature. For the said act the owner of the animal who had caused injury or damage will be liable. Liability under this point of law “actio de pauperie” would apply only when the animal must have acted “contra naturam sui generis.” The interpretation of “contra naturam” rule is wide in nature and suitability to the case.

The Court further dealt with the issue of provocation in which it was observed that on record there was nothing to indicate in the behaviour of the minor that constituted to any particular external stimuli for the dog to act “contra naturam”. Though, on the other hand it was also analysed by the Court that any reasonable dog would not have attacked a child simply on his climbing the boundary wall, which clearly puts the dog into the arena of acting “contra naturam”. Further it was also stated that the action of “actua de pauparie” is a special action limited to those who are lawfully on the defendant’s land when bitten and dealing with the present case, it was held that the child has a “pauperian” claim even if found without direct lawful entitlement. [Phildentia Kohl v. Charl Grobbelaar; Case No. 4962/2017; dated 22.05.2018]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B. Lokur and NV Ramana, JJ directed the the Ministry of Rural Development to prepare an urgent time bound mandatory program to make the payment of wages and compensation to the workers in consultation with the State Governments and Union Territory Administrations. The Bench said:

“This is not only in the interest of the workers who have expended unskilled manual labour but also in furtherance of the rule of law which must be followed in letter and spirit.”

On the issue pertaining to the delay in payment of wages and compensation to the beneficiaries under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (Act) and the Scheme framed thereunder, the Court said that in terms of the Act and Schedule II thereof a worker is entitled to payment of wages within a fortnight of the date on which the work was done, failing which the worker is entitled to the compensation as prescribed in paragraph 29 of the Schedule II of the Act. Stating that one entity cannot pass on the burden to another and vice versa, the Court said that the burden of compliance is on the State Governments and Union Territory Administrations as well as the Central Government.

On Central Government’s argument that it has no responsibility after the second signature is placed on the Fund Transfer Orders, the Court said:

“The Central Government cannot be seen to shy away from its responsibility or taking advantage of a person who has been placed in the unfortunate situation of having to seek employment under the Act and then not being paid wages for the unskilled manual labour within the statutorily prescribed time. The State Governments and Union Territory Administrations may be at fault, but that does not absolve the Central Government of its duty.”

Stating that delays are simply not acceptable, the bench said that the law requires and indeed mandates payment of wages not later than a fortnight after the date on which the work was done by the worker or labourer. Any reason for the delay in receiving wages is not at all the concern of the worker. He or she is entitled to get the due wages within a fortnight of completion of the work. It was hence held that if there are any administrative inefficiencies or deficiencies or laxity, it is entirely for the State Government and the Ministry of Rural Development to sort out the problem. [Swaraj Abhiyan (VI) v. Union of India,  2018 SCC OnLine SC 578, decided on 18.05.2018]