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., Revision Petition No. 3742 of 2008, 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, Revision Petition No. 1971 of 2018, 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]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ and V. Kameswar Rao, J. allowed a letters patent appeal against the judgment of the writ court whereby the appellants petition for compensation of his son was dismissed.

On the fateful day, the appellant and his 14-years old son had gone to Sanjay Park maintained by Respondent 1 — East Delhi Municipal Corporation, where while playing cricket the son came in contact with an electric wire lying there and was electrocuted which resulted in his death. In the action brought for compensation by the appellant, the respondents started to shift the liability on each-other, Respondent 2 being BSES, the company responsible to maintain the electricity system in the said park. The writ court dismissed the action holding that there was a dispute as to who was responsible and such a question could only be looked into by the trial court.

The High Court was of the view that approach of the writ court was not right. The Court was of the view that the negligence on the part of respondents was writ large in the improper manner of maintaining the electricity system. It was of the view that the death of deceased was caused due to negligence of the respondents. In such situation, according to the High Court, the writ court ought not to dismiss the valid claim for compensation brought by the appellant. Holding thus, the only question left was of assessing the amount of compensation to be awarded to the appellant for the death of his 14-years old son. After applying the proper formula, the Court assessed the amount of compensation at Rs 27,38,607.81 along with interest. At first, both the respondents shall each pay 50% of the amount and thereafter they could work a settlement amongst themselves. The appeal was disposed of in the manner above. [Rajeev Singhal v. MCD, 2018 SCC OnLine Del 11518, dated 27-09-2018]

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]