Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Harilal and Annie John, JJ. dismissed an appeal filed by an insurance company against the order of Commissioner for Workmen’s Compensation (WCC) directing it to pay a certain sum of money to the respondent herein.

Respondent herein had filed an application under Section 22 of the Workmen’s Compensation Act, 1923 seeking compensation for the death of one driver Xavier while driving a car owned by one Trissa, on collision with a lorry. WCC allowed the said application. Aggrieved thereby, the present appeal was filed by insurance company.

Appellant company challenged this award contending that the respondent had already been awarded compensation by the Motor Accident Claims Tribunal (MACT) under Section 140 of the Motor Vehicles Act, 1988. Therefore, she was estopped from filing the application under Workmen’s Compensation Act.

The Court noted that as per Section 167 of the MV Act, the aggrieved party can claim compensation either under the Workmen’s Compensation Act or under Chapter 10 of the MV Act. One cannot proceed under both the statutes for compensation. However, in the instant case, though the respondent received interim compensation under MV Act, she subsequently withdrew her case under MV Act and WCC deducted the amount awarded by MACT. Thus, at the time of passing the impugned award, there was no proceeding under the MV Act.

It was opined that merely for the reason that earlier the claimants proceeded under the MV Act and later, withdrew the said proceedings and filed for compensation under the Workmen’s Compensation Act, it cannot be held that the subsequent claim was barred by Section 167 of the MV Act.

Thus, it was held that there was no illegality or impropriety in the impugned award granting compensation under the Workmen’s Compensation Act after deducting the interim award granted by MACT.[United India Insurance Company Limited v. Mary, 2018 SCC OnLine Ker 8199, Order dated 14-12-2018]

Case BriefsHigh Courts

Delhi High Court: I.S. Mehta, J. dismissed an appeal filed by the claimant against an award of compensation granted in a motor accident’s claim by the Presiding Officer, Motor Accidents Claim Tribunal-2 (Central), Tis Hazari Courts.

Bhagwat Prasad was crossing a road when he was hit by a motorcycle. He filed a claim petition against the driver of the motorcycle as also the insurer. The Tribunal awarded a compensation of Rs 1,46,572 plus interest to Bhagwat Prasad. Not satisfied with the quantum of compensation, he filed the present appeal.

D.S. Bhandari, Advocate for Bhagwati Prasad challenged the award on various grounds including that the Tribunal did not award any compensation towards loss of income due to inability. Per contra, Pankaj Gupta for Suman Bagga, Advocates representing the insurer supported the Tribunal’s order.

The High Court noted that Bhagwat Prasad relied upon his disability certificate of 42% which was not permanent disability. This, according to the Court, disentitled him for compensation towards loss of income. In view of the Court, the same also disentitled him for compensation towards future treatment. As far as the plea regarding the loss of disfigurement is concerned, the Court observed, “the same losses its significance, as, the injuries on the person is a temporary fracture…As such fracture on the ankle is not permanent in nature and is curable. The same cannot be classified as disfigurement injury which could be a stigma in the society and a factor to lower down his position in the society. Therefore, appellant is not entitled to any compensation towards disfigurement.”Finding no infirmity in the impugned award passed by the Tribunal, the Court dismissed the present appeal. [Bhagwat v. Laxman, 2019 SCC OnLine Del 7339, decided on 26-02-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Mohit Kumar Shah, J. hearing a civil writ petition against power distribution company, allowed the affected party to claim compensation from the company for damage caused to its property owing to the layout of electric wires.

The present petition prayed for a command to the respondent to shift an 11,000-voltage of live wire passing over the residential house of the petitioner, as the same had been hanged without his permission. The respondents opposed the same stating that the electric wire had been laid about twenty years prior to the construction of petitioner’s house but no objection was raised by the petitioner at the time of laying the wire. Moreover, the wire passed by the side of the house over an asbestos shed. Further, about 9000 consumers were being benefited by the electricity in question and there was no feasibility for shifting the line.

The Court followed law laid down by the Apex Court in the case of Power Grid Corpn. of India Ltd. v. Century Textiles and Industries Ltd., (2017) 5 SCC 143 wherein it was held that Section 10 of the Indian Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property; and in doing so, the government acquires only a right of user in the said property. The authority is obliged to ensure that it causes as little damage as possible and if any damage is caused by exercise of those powers, it is obliged to pay full compensation to the affected party for the damage sustained.

Accordingly, the petition was disposed of with the consent of parties with liberty to the petitioner to avail remedies as available to him under the aforesaid judgment. [Sanjay Kumar v. North Bihar Power Distribution Company Ltd., 2018 SCC OnLine Pat 2317, Order dated 05-12-2018]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Narayan Singh Dhanik J. disposed a compounding application along with a criminal writ petition and quashed the First Information Report filed against the accused applicant on the ground of amicable settlement of the dispute between the parties.

The instant application had been filed for quashing FIR registered against the applicant under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code. The accused-applicant and respondent-complainant entered into a compromise whereby the loss suffered by respondent was duly compensated and dispute between both the parties had been amicably settled. The complainant had no grudge or grievance against the accused-applicant and hence he was not interested in further prosecution.

The Court observed that though the complainant can be permitted to enter into the compromise for offences under Sections 406 and 420 IPC, but for the offences under Sections 467, 468 and 471 IPC, the complainant has no right to enter into a compromise with the accused. However, it was opined that in the present case, as the complainant and accused had willingly and amicably arrived at compromise; and complainant was not interested in further prosecution, therefore it would be futile to permit future trial inasmuch as it would not reach to its logical and correct conclusion as there is great possibility of witnesses turning hostile.

In view of the above, compromise arrived at between the parties was accepted and the compounding application was allowed. [Akil Ahmad v. State of Uttarakhand, 2019 SCC OnLine Utt 10, Order dated 16-01-2019]

Case BriefsHigh Courts

Madras High Court: The Bench of T. Ravindran, J. set aside the order of Deputy Commissioner of Labour whereby he had set aside the earlier order for compensation passed ex-parte in favour of the petitioner herein.

Petitioner suffered injuries at his workplace and sought compensation from the respondent. The Deputy Commissioner, by an ex-parte order, awarded him a compensation of Rs 2,39,380. The respondent contended that it was not able to appear before the Authority due to communication gap and wrong noting of dates of hearing. The Deputy Commissioner allowed the application of respondent ad set aside it earlier order. Aggrieved thereby, the petitioner filed the present civil revision petition.

After perusing the entire record, the High Court found that the Deputy Commissioner did not properly appreciate petitioner’s submission that the earlier order was not an ex-parte order but was one passed on merits. Furthermore, the respondent did not place nay evidence to substantiate the cause of non-appearance pleaded by it. The very basis of the cause projected by the respondent was not established in any manner. The Court held that in such case, the Deputy Commissioner should not have entertained the respondent’s application. In such and other view of the matter, the petition was allowed and the impugned order was set aside. [S. Dhanasekaran v. Sree Nithyakalyani Textile Ltd., 2018 SCC OnLine Mad 4910, Order dated 18-12-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was filed before a Single Judge Bench of Lisa Gill, J., by the Insurance Company challenging its liability to pay compensation to the claimants which was awarded by the Motor Accident Claims Tribunal.

Facts of the case were that the claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, by the claimant-respondent and the same was decided by the Tribunal and compensation of Rs 2,89,012 along with interest at the rate of 6% per annum was awarded on account of injuries received by respondent in the motor vehicle accident. Appellant i.e. the insurance company contended that the Tribunal erred in holding that a valid driving license was present with the driver of the offending vehicle. Offending vehicle being a bus. It was further submitted that ‘unladen weight’ and ‘gross vehicle weight’ are distinct from each other. And according to the driving license he was not entitled to drive the bus.

High Court observed that the driving license found with the offending vehicle’s driver was valid for a transport vehicle. The appellant had failed to show that the driving license was valid for driving of Light Motor Vehicle Non-Transport, Transport Vehicle and Light Motor Vehicle CAB. It was also observed that the distinction between the ‘unladen weight’ and the ‘gross vehicle weight’ was irrelevant. Since appellant had failed to show that respondent was carrying an invalid driving license the appeal should be dismissed. Therefore, on finding no ground to interfere in the impugned order, this appeal was dismissed. [United India Insurance Co. Ltd. v. Gurchain Singh, 2018 SCC OnLine P&H 2723, decided on 20-12-2018]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. ordered mother-in-law of the petitioner to provide her an alternate accommodation and compensation under provisions of Protection of Women from Domestic Violence Act, 2005.

Petitioner and her husband lived together in the property which is subject matter in this case. In 2012, the husband left the matrimonial house and the respondent (mother-in-law) directed the petitioner to leave the house. She is alleged to have filed a suit for permanent injunction after which the litigation story began. After several litigations, the Metropolitan Magistrate passed a residence order in favour of the petitioner. It was alleged that the order was not complied with and moreover the mother-in-law sold the subject property to a third party while the matter was still pending adjudication before the court.

Rajeev Ranjan Pandey, Advocate submitted on behalf of the petitioner that the respondent was liable to be prosecuted for breach of court orders.

The High Court referred to Sections 12, 19, 20 and 31 of the DV Act. It was noted that the subject property was sold for Rs 3,40,00,000. It was also noted that there was no order restraining the mother-in-law from selling the property and as such she could not be penalised under Section 31 which prescribe punishment for breach of court orders. In such a situation, the Court balanced the corresponding rights of the parties by directing the mother-in-law to provide an alternate accommodation in a property similar in nature in the same locality. Interim compensation of Rs 75,000 was also directed to be paid while pendency of proceedings Section 20 before the trial court. Furthermore, 1/6th of the sale consideration received was directed to be deposited with the trial court. The petition was disposed of in such terms. [Shachi Mahajan v. Santosh Mahajan, 2019 SCC OnLine Del 6418, dated 10-01-2019]

Case BriefsHigh Courts

“Urgent need to get out of the preconditioned mind of the majority who unfortunately see Spas and Massage Centres as brothel houses.”

Madras High Court: The Bench of N. Anand Venkatesh, J. allowed a petition filed by a spa therapist against her illegal confinement and quashed cases filed against owners of massage and spa centres in Tamil Nadu.

The instant petition arises out of an FIR registered by respondent under Immoral Traffic (Prevention) Act, 1956, against the manager of Willows Spa citing petitioner – an Indonesian spa therapist working therein – as a victim of prostitution. Pursuant to a police raid at the said spa, petitioner along with four other spa therapists was taken into custody and confined in a government vigilance home for nearly 26 days without even being informed of the grounds of her confinement. Aggrieved thereby, she filed the present petition seeking compensation for violation of her personal liberty and loss of personal reputation.

The Court opined that banning of cross-gender massaging would not guarantee stoppage of illegal activity and urged to change pre-conceived notions about massage and spa centres. It observed that cross-gender massages is a worldwide phenomenon and held that the police had no legal right to prevent a health spa being operated by anyone even if therapy is done to persons of one sex by those belonging to the opposite sex.

It was noted that there was no proof of even a single incident of prostitution or activities of a prostitute in Willows Spa. No respectable inhabitant of the locality was called as a witness in the said case. The Indonesian Consulate was not informed about the incident and the same was in contravention of Office Memorandum No. 14051/14/2011-F.VI of the Ministry of Home Affairs.

The Court opined that the entire action of the police was illegal and a case of colourable exercise of power. If this power goes unchecked, spa centre or a massage parlour could be run only at the mercy of a police officer. For an extraneous consideration, the police can brand any spa as a brothel and even if a brothel is being run in the name of a spa, no action would be taken. Such a situation is neither good for the society nor the police force.

It was observed that every foreign national who comes to India should be treated like an ambassador of the concerned country as they carry with them their opinions and impressions about our country. Petitioner had come to India on a valid employment permit and an offered salary of $ 25,000 per year. She had hardly worked for three months when she suffered a horrific experience of being confined illegally in a government home for 26 days.

In view of the above, respondent’s FIR was quashed and petitioner was granted Rs 2,50,000 as compensation. [Kadek Dwi Ani Rasmini v. K. Natarajan, 2019 SCC OnLine Mad 23, decided on 02-01-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Member Bench of Dr S.M. Kantikar, Presiding Member, Dinesh Singh, Member, dismissed a revision petition filed against the order of the State Commission, whereby the petitioner was ordered to pay compensation to the respondent for deficiency in services.

The main issue that arose before the Commission was whether the complaint filed by the respondent was within the period of limitation.

The Commission observed that the Consumer Protection Act, 1986 (COPRA) was enacted to provide an additional remedy to the consumer apart from other remedies available to them under different laws. The respondent herein was well within the ambit of “consumer” as per the provisions of COPRA and hence it had rightly approached the district forum for redressal of its grievances. The Commission further observed that Section 24A of the COPRA talks about the period of limitation in filing a complaint and it says that the complaint shall be filed within 2 years from the date on which the cause of action arose. It is pertinent to note that the instant case involved an issue of carriage by air and there is a separate enactment which governs the law related to carriage by air i.e. Carriage By Air Act, 1972 (1972 Act). Rule 30 of the Second Schedule of 1972 Act says that right to claim damages gets extinguished if an action is not brought against the erring party within 2 years from the date of arrival at the destination. Clearly in case if there arises a conflict between Section 24 A of the COPRA and Rule 30 of the 1972 Act, then Rule 30 shall prevail since the 1972 Act was enacted under Article 253 of the Constitution of India to implement an international convention.

The Commission held that as per the ruling of the Supreme Court in the case of Sahwney Export House (P) Ltd. v. Pakistan International Airlines, First Appeal No. 283 of 1992, the 1972 Act shall prevail over the provisions of COPRA if the case pertains to carriage by air and there is a question of limitation involved, even if the complaint is filed under the provisions of the COPRA. Resultantly, the Commission allowed the revision petition and set aside the order of the state commission.[Pakistan International Airlines v. Dar Trading Co., 2018 SCC OnLine NCDRC 458, order dated 03-12-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ. allowed an appeal for enhancing the compensation awarded under Motor Vehicles Act, 1988 by the Kerala High Court.

The claimants were the dependants (wife, 2 children, and aged father) of the deceased who died in an accident in 2008. The moved a claim petition before the Motor Accidents Claim Tribunal seeking a total compensation of Rs 25,00,000. The Tribunal granted a compensation of Rs 11,83,000 which was enhanced by the High Court by an additional award of Rs 9,70,000. The claimants preferred the instant appeal for further enhancing the compensation.

The Supreme Court considered the salary certificate of the deceased, cost of living, and other relevant factors. It was held that the High Court was not right in deducting 2/3rd of the deceased’s total income towards his personal expenses and was of the view that a deduction of 40% would be appropriate for quantifying compensation. In the opinion of the Court, the claimants were entitled to a total compensation of Rs 28,00,000 which interestingly was higher than the amount claimed by the dependants of the deceased. Referring to Nagappa v. Gurudayal Singh, (2003) 2 SCC 274; Magma General Insurance v. Nanu Ram, 2018 SCC OnLine SC 1546 and Ibrahim v. Raju, (2011) 10 SCC 634, the Court observed, “There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles  Act, 1988 is to award ‘just compensation’. The Motor Vehicles Act is a beneficial and welfare legislation. A ‘just compensation’ is one in which reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty to award just compensation.”

The appeal was thus allowed and disposed of in terms above. [Ramla v. National Insurance Company Ltd.,2018 SCC OnLine SC 2616, decided on 30-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal, Mumbai (ITAT): A Bench comprising Saktijit Dey (JM) and Manoj Kumar Aggarwal (AM), allowed actor Sushmita Sen’s appeal against the order of Commissioner of Income Tax (Appeals), holding that the amount received in lieu of sexual harassment claim is not taxable.

The assessee who had received a sum of Rs 1.45 crores from Coca-Cola India Limited as a settlement amount for breach of celebrity engagement contract, submitted only Rs 50 lakhs out of the said amount to tax claiming the balance Rs 95 lakhs to be capital receipts. CIT(A) held that the payment received by assessee actor arose out of cancellation of the contract and did not affect the trading structure of her profession. The termination was a part and parcel of her profession not amounting to the loss of an enduring asset causing abrupt close down of her profession or dislocation of the capital structure of her profession earning apparatus. Therefore, the entire amount was held to be revenue receipts. Aggrieved thereby, the instant appeal was filed.

Submission on behalf of the assessee was that the full amount of Rs 1.45 crores was received as compensation for her sexual harassment by an employee of Coca-Cola. However, out of abundant caution, she considered a sum of Rs 50 lakhs due to her under the contract as her income and submitted the same for taxation.

The Tribunal, after appreciation of materials on record, found that in case of default by Coca-Cola, only Rs 50 lakhs was due to the assessee as per the terms of the contract. She had received Rs.1.45 crore out of which Rs 50 lakhs had been offered to tax. The balance amount of Rs 95 lakhs was received as a settlement in a sexual harassment claim. The appeal was allowed holding that since the said amount did not arise out of exercise of profession by the assessee, it could not be construed to be her income or profits and gains of profession within the meaning of Section 2(24) and Section 28 of the Income Tax Act, 1961.[Sushmita Sen v. CIT, Income Tax Appeal No. 4351/Mum/2015, decided on 14-11-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of CJ Vijai Kumar Bist, disposed of a writ petition on carefully observing that an alternative remedy under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018 is available for claiming compensation by filing a claim petition thereunder.

In the present petition, the petitioner had started to construct his house on a plot at Karthok Block, Pakyong, East Sikkim. He had constructed a protective wall in order to withstand the natural calamities. Petitioner on completion of the construction of ground floor found that all the walls of the ground floor had developed many major and minor cracks.

The Counsel for the petitioner submitted that the damaged building was assessed by the Buildings and Housing Department, Government of Sikkim for Rs 65,41,062 and he was entitled to the same from the State Authority. High Court’s order for complying with same was not adhered to which led to the filing of the contempt petition before this Court.

An additional submission was that the respondents had paid compensation to other affected persons except for the petitioner.

Thus, the Court noted the submissions of the parties and reached a conclusion by stating that the petitioner is entitled to compensation for the loss and damage suffered by him, but same cannot be awarded to him by issuing direction in this petition due to the alternative remedy available to him under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018. The writ petition was accordingly disposed of. [Hantey Gyatso Kazi v. State of Sikkim,2018 SCC OnLine Sikk 233, dated 15-11-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: This appeal was filed before a Single Judge Bench of Rohit Arya, J., under Section 173 of the Motor Vehicles Act, 1988 against the impugned order passed by Motor Accidents Claims Tribunal (Shajapur).

Facts of the case were that deceased met with an accident caused by the rash and negligent driving of respondent thereby causing their death. The respondent’s vehicle was insured with Insurance Company (Respondent 3). The claimant brought before Court the salary earned by deceased at the time of his death i.e. Rs 3,500. The claimant suffered not only the loss of love and affection of their family member but also financial constraints. The claimants were aggrieved by the meager compensation awarded by the Tribunal and prayed for its enhancement. The issue before the court was whether the compensation awarded by Tribunal of Rs 2,41,000 was justified.

Insurance company supported the award of compensation passed by Tribunal to be just, appropriate and proper with no requirement of enhancement. The High Court was of the view that impugned award was not assessed properly, being on the lower side it needed to be enhanced taking into consideration the age, dependency of the deceased and his future prospects. Court found it appropriate to deduct 1/3 instead of 1/2 towards personal expenses of the deceased. On viewing that Tribunal did not award compensation under the head ‘future prospects’, compensation was granted under the above head. Therefore, the appeal was allowed and award of compensation was enhanced to Rs 2,44,000. [Samrat v. Manish,2018 SCC OnLine MP 833, order dated 16-11-2018]

Case BriefsSupreme Court

“Motor Vehicles Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely.”

Supreme Court: The Bench comprising of A.M. Sapre and Indu Malhotra, JJ. allowed the present appeal filed against the decision of Rajasthan High Court whereby the appeal of the claimants was dismissed and award  by Motor Accident Claims Tribunal (Jaipur) was affirmed.

In the present case, the deceased was travelling in a passenger bus to a place called ‘Chomu’ and when the bus reached Chomu, a truck which was going towards Jaipur came on a high speed and dashed against the bus. Deceased sustained grevious injuries resulting in instant death which led to the filing of an FIR. Further, the incident gave rise to initiation of criminal and civil proceedings.

Proceeding were initiated before the civil court, filed by the appellants (claimants) against the Insurance Company (Respondent 1), driver (Respondent 2) and owner of the offending truck (Respondent 3) under Section 166 Motor Vehicles Act before MACT claiming to award reasonable compensation for loss on account of untimely death of the deceased, their only bread earner. Appellants along with the claim petition had filed all the requisite documents against the driver. Tribunal had dismissed the appellants claim petition stating that claimants failed to prove the accident for want of evidence and the one adduced was not exhibited and hence was of no use. Aggrieved by the same, the claimants approached the Rajasthan High Court wherein their appeal was dismissed and therefore filing of the present appeal in Supreme Court arose.

The Bench gave a seven pointer reasoning on the issue by adding that the High Court while dismissing the appeal simply affirmed the award of the Tribunal without assigning any reason. In Court’s opinion, “ non-exhibition of the said document was nothing but a procedural lapse, which could not be made basis to reject the claim petition.” Thus, the Court while stating that “if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence then in such event, the appellants cannot be denied of their right to claim compensation on such ground.” Appellants were held entitled to claim Rs 11,27,920 by way of compensation from the respondents jointly and severally. [Vimla Devi v. National Insurance Co. Ltd.,2018 SCC OnLine SC 2458, decided on 16-11-2018]

Case BriefsHigh Courts

Allahabad High Court: A transfer application was filed under Section 24 of Code of Civil Procedure before a Single Judge Bench of Anjani Kumar Mishra, J. for transfer of Motor Vehicles Claim petition pending before the Motor Vehicles Claim Tribunal.

A motor vehicle claim was filed before motor vehicle tribunal in order to receive compensation. The petitioner filed an application for transfer of matter pending before the tribunal. The question before the court was whether an application under the Motor Vehicles Act could be transferred under Section 24 of Code of Civil Procedure. For resolving the above dispute relevant provisions of Motor Vehicles Act were referred to. It was viewed that the Tribunal had been created under Section 165 of the Motor Vehicles Act by the State Government.

Under Rule 221 of U.P. Motor Vehicle Rules, 1998 which mentions the cases where Code of Civil Procedure could be applied suggested that the Code has no application in the matter under Section 24 by virtue of the nature of the Act to be a complete code in itself. Section 24 states the general power to transfer matter pending in a court subordinate to High Court or District Court. Court referred to the case of Ethiopian Airlines v. Ganesh Narain Saboo, 2011 (8) SCC 539 and viewed the Act to be specific and special thus giving limited applicability to the Code. The Tribunal was formed under a special Act which was sufficient in itself and cannot be said to be subordinate. Therefore, the transfer application was dismissed being not maintainable. [Shankar Lal v. Asha Devi,2018 SCC OnLine All 2545, order dated 12-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P.R. Ramachandra Menon, J. while hearing a motor accident claims appeal, ruled that compensation towards ‘loss of consortium’ includes compensation for ‘loss of love and affection’.

The present appeal arises out of a motor accident claim petition filed by the appellant due to the death of his son while traveling in a taxi owned, driven and insured by respondent. Though the Tribunal found the accident to be solely attributable to the negligence of the driver it noted that the actual income of the deceased had not been substantiated properly. As such, taking Rs 1500 as notional monthly income, it awarded Rs 1,15,000 as compensation. The only challenge in the present appeal was in relation to the inadequacy of compensation awarded by the Tribunal.

The  High Court noted that though the actual income had not been proven, the factum of employment was brought on record. As such, it was of the view that fixation of notional monthly income as Rs 1500 was very low and the same was doubled and refixed as Rs 3000 inclusive of future prospects. The court also refixed the compensation payable towards loss of love and affection and loss of estate.

The appellant submitted that he was also entitled to compensation towards loss of consortium. The court noted that there are three kinds of compensation payable towards loss of consortium being; (i) spousal consortium, (ii) parental consortium, and (iii) filial consortium. In case of accidental death of a child, parents are entitled to filial consortium as a compensation for loss of love, affection, care, and companionship of the deceased child.

Relying on the judgment in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, the court observed that compensation awarded towards consortium is primarily compensation for loss of love, affection, care, and companionship. Thus, the appeal was allowed in part holding that since compensation for loss of love and affection had already been awarded in the present case, therefore no further compensation was payable under a separate head of ‘loss of consortium’. [K. Karthiyani Amma v. M. Sukumar,2018 SCC OnLine Ker 4144, decided on 19-09-2018]

 

Case BriefsDistrict Court

District Consumer Disputes Redressal Forum, Ganjam Behrampur: The Bench comprising of Karuna Kar Nayak (President) and Sri Purna Chandra Tripathy (Member), partly allowed a case filed against O.P i.e. “AMAZON”  for ‘deficiency in services’.

In the present matter, the complainant Supriyo Mahapatra had filed a consumer complaint under Section 12 of Consumer Protection Act, 1986 for ‘deficiency in services’ against AMAZON.  The complainant had placed an order for an ASUS X450-cawx214d 14 INCH Laptop for an amount of Rs 190/- against the original price of Rs. 23,499/- by offering a discount of Rs 23,309/-, on placing the order for the same with the option of ‘cash on delivery’, the complainant received a confirmation on his e-mail id and further on acceptance of the order, the complainant was assured with its delivery of the product soon. Though in accordance with the facts as stated, the complainant’s order was cancelled after a couple of hours and he was intimated for the same through a phone call from the customer service department of O.P. Further, the O.P. in response to the reason for cancellation stated that there was some ‘Pricing issue’ due to which the order stands cancelled.

The primary issue that arose in the matter was due to no-response on behalf of the O.P after continuous efforts made by the complainant through customer care service and e-mail in regard to a valid reason for cancellation of his order, which finally forced the complainant to issue a legal notice, which again was not responded by the O.P.

For the above-stated submissions, the District Consumer Disputes Redressal Forum stated that the “O.P. was not only negligent in rendering proper service to the complainant but also involved in unfair trade practice; as such we hold there is deficiency in service by O.P.”. Therefore, complainant’s case was partly allowed and O.P. was directed to pay Rs 10,000 for mental agony as compensation and Rs 2,000/- for the cost of litigation. [Supriyo Ranjan Mahapatra v. Amazon Development Centre India (P) Ltd., Consumer Complaint No. 42 of 2015, Order dated 05-09-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission: The National Commission, through a Bench comprising of Anup Kr Thakur, Presiding Member and C. Vishwanath, Member allowed the revision petition and set aside the order passed by the State Commission in the present case.

The present case was filed by the respondents in the District Commission against the petitioners for an award of compensation to the tune of Rs 50,000 for the physical, mental and financial pain which was inflicted and Rs 20,000 legal expenses which had been incurred. The respondents had given a laptop for repair to the petitioners, who after having given an assurance of the timely repair of the laptop, subsequently did not respond to the correspondences of the respondents, nor did they complete the repair. The District Commission gave the respondents Rs 15,000 in compensation and Rs 5,000 for legal expenses, to which a revision petition was filed to the State Commission. The State Commission dismissed the appeal due to non-appearance of the petitioners. In the present revision petition before the National Commission, the petitioners have argued that due to certain pressing reasons, such as the resolution passed by the Bar, calling for all lawyers to abstain from work, illness, and incorrect date being mentioned on the cause list by the reader, the petitioners were not able to appear before the State Commission.

The National Commission held that the non-appearance before the State Commission was not deliberate and, as there were sufficient reasons for the absence of the petitioners, it is in the interest of justice that he be heard, otherwise his position in law will be severely prejudiced. Accordingly, it was decreed by the National Commission that the order passed by the State Commission be set aside, and the State Commission was to hear both the parties in the appeal and decide on merits. [Multycare Solutions v. Malay Bhaumik, 2018 SCC OnLine NCDRC 404, order dated 03-10-2018]

Case BriefsSupreme Court

“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference.”

-CJ R.C. Lahoti (as he then was)

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Vineet Saran, JJ. in a case of “medical negligence” as alleged by the respondents in the present case allowed the appeal and set aside the impugned order passed by the National Consumer Dispute Redressal Commission on no merits being laid down in favour of alleged medical negligence.

The present appeal was filed in consequence of the impugned order passed by the National Commission. The facts and points to be noted in the present case were that the appellant was a doctor with expertise in gall bladder surgery and he was alleged by Respondent 1 to have conducted a gall bladder surgery on Respondent 1 without her consent, which she had claimed to be given only for Laparoscopic surgery. On the grounds as mentioned above, Respondent 1 approached the State Commission claiming negligence on the part of the appellant as right after the year 1996, in 1997, the respondent had to get admitted to a hospital in Delhi and suffered from various other ailments which occurred due to the negligence on the part of appellant giving reference to the conventional gall bladder surgery which she had not agreed to. On refusal of any compensation from the State Commission, Respondent 1 approached the National Commission which awarded her compensation setting aside the State Commission’s order.

The above-stated matrix of contentions and a brief history of the present case led the appellant to file an appeal by special leave to appeal.

The Supreme Court, on perusal of the facts, evidence and placing reliance on the Bolam’s Test as suggested in the case of Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582, in which it was held that a “physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.”; the Apex Court concluded its decision while briefing out some important pointers of the case in order to deliver justice and clarity to comprehend the concept of medical negligence.

Therefore, the Court stated that the appellant-doctor was a qualified senior doctor with requisite knowledge and skill to perform the surgery of gall bladder. The said step of conducting the gall bladder surgery while conducting the laparoscopic surgery was taken due to the condition observed while doing the latter. On the occurrence of such emergent situation, the appellant took the consent of the Respondent 1’s husband on explaining him the whole situation. Further, the Court observed that Clause 4 of the Consent Form which was duly signed by Respondent 1, empowered the doctor to perform additional operation or procedure in the event of emergency.

Hence, it was not an unauthorized act of the appellant and he could legally perform on the basis of above-mentioned Clause 4 of the Consent Form on which Respondent 1 had duly signed. Adding to the above opinion of the Bench, it also stated that no medical evidence of any expert was adduced to prove the allegation of negligence by Respondent 1. The appeal was allowed by restoring the State Commission’s order and setting aside the National Commission’s order on finding no merits in their decision. [S.K. Jhunjhunwala v. Dhanwanti Kumar,2018 SCC OnLine SC 1721, decided on 01-10-2018]