Case BriefsHigh Courts

Punjab and Haryana High Court: Kuldip Singh, J. modified the claim allowed by the Tribunal on the ground that the deceased was maintaining her family.

An appeal was filed by the claimant against the award made by Motor Accident Claims Tribunal, Karnal.

Facts of the case were that car accident took place which was driven by Jagdish Lal Ahuja i.e. Claimant 1 at very moderate speed. When they reached downside the railway overbridge a jeep being driven by Respondent 1 came at a very fast speed in a rash and negligent manner from the opposite side. Respondent 1 could not control the Jeep and hit the motorcycle of one Sandep Kumar and then Trax Jeep lost the control and hit the car. Deceased received multiple injuries. She succumbed to the injuries at Civil Hospital, Karnal. It was claimed that the deceased was earning Rs 16,000 to Rs 20,000 per month. Because of the death of the deceased, the claimants were deprived of the income of the deceased. In the reply, the respondent denied the fact that the accident took place due to the negligence of the jeep driver. The insurance company also denied the claim. The Tribunal held that the accident took place due to rash and negligent driving of the driver of the jeep but the Tribunal relied upon the income tax return for the year 2002-2003 and applied the multiplier of 8 and ordered the compensation amount accordingly. Thus aggrieved by the order of compensation an appeal was preferred by the claimant.

High Court opined that the Tribunal erred in discarding the income tax return for the year 2002-2003 only on the ground that it was filed after the death of the deceased. The Tribunal did not appreciate that the income tax authorities did not accept this return to be correct. The court also opined that as deceased was about 55 years old at the time of the accident, the multiplier of nine was to be applied. On the question that the dependents were eligible for the compensation, reliance was placed upon the case of Gujarat SRTC v. Ramanbhai Prabhatbhai, 1987 AIR (SC) 1690, in which various observations were made to press that the claimants being legal heir are entitled to compensations. It was further opined that as it cannot be assumed that unit is still running and as there was a loss of management on account of the death of the deceased who was looking after the entire affair and was supporting the family the multiplier of 9  should be applied. Thus the claim of Rs 11,95,000 was ordered to be payable along with the interest at 7.5 percent.[Jagdish Lal v. Ram Chander, 2019 SCC OnLine P&H 1175, decided on 11-07-2019]

Case BriefsHigh Courts

Rajasthan High Court: P.K. Lohra J., in an appeal under Section 173 of the Motor Vehicles Act, 1988 upheld the decision of the impugned judgment and directed the insurer to first pay the compensation amount to the claimants and then recover from the insured.

In the present case, the appellants being Megma HDI General Insurance Company Limited had appealed before the High Court challenging the judgment and award passed by the Motor Accident Claims Tribunal, Jodhpur. The Tribunal had absolved the appellants herein from the liability to pay compensation to the claimants and the onus was on the owner of the vehicle. However, it had directed the appellants to pay the compensation to the claimants first and thereafter claim the amount from the owner of the vehicle, the insured.

Challenging this above order, the counsel representing the appellants, Dhanpat Choudhary, placed reliance on the Supreme Court judgment National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 and submitted that the tribunal erred in ordering the appellants to first pay the compensation to the claimants and thereafter recover it from the insured party.

The High Court, after perusal of the Tribunal’s order, referred to the Supreme Court judgments in Pappu v. Vinod Kumar Lamba, (2018) 3 SCC 208 and Amrit Paul Singh v. Tata AIG General Insurance Co. Ltd., (2018) 7 SCC 558 wherein it was held that in case of any loss to the third party, the insurer is first required to pay compensation to the claimants and then recover the same from insured. It stated that the Tribunal had absolved the appellants from the duty due to the insured party not complying with the insurance policy but in order to mitigate the hardship of the claimants, the Tribunal directed the appellants to recover the compensation amount from the insured after paying the same to the claimants. The appeal was dismissed.[Megma Hdi General Ins. Co. Ltd. v. Likhama Ram, 2019 SCC OnLine Raj 1292, decided on 05-07-2019]

Case BriefsHigh Courts

Rajasthan High Court: P.K. Lohra, J. allowed an appeal for enhancement of the compensation amount awarded by the Motor Accident Claims Tribunal, Bikaner.

In the instant case, the husband of the appellant wife, aged about 38 years, was driving to Bikaner from Delhi in his car when he was hit by a truck, driven at a high speed and rashly. The severity of the accident caused the husband to expire on spot. The appellants claimed compensation. The Tribunal decided the accident to have happened due to the negligence of the truck driver and there was no negligence on the part of the deceased. The Tribunal had made one-third deduction as his personal expenses from the salary and thereafter, compensation for loss of dependency, and non-conventional damages worked out total amount of compensation to Rs 4,19,000.

The Counsel representing the appellant, Gurvinder Singh, challenged the order contending that the tribunal did not consider the income tax return of the deceased and income of business profits while calculating the compensation amount. He also put forth, the tribunal erred in not taking into consideration the number of dependents (which was four in number) instead it considered three. Lastly, the learned counsel contended that the interest should have been awarded at 9% per annum.

The Counsel representing the respondents, Mukul Singhvi, defended the impugned judgment of the tribunal and stated that the court was correct in calculating the interest at 6% per annum.

The High Court upon examination of the evidences produced before the Court, decided to enhance the compensation amount. It reassessed the income of the deceased and took into consideration the number of dependents of the family, hence deducted one-fourth under the head “Loss of Dependency”. The High Court placed reliance on the Supreme Court Judgment in Sarla Verma v. DTC, (2009) 6 SCC 121, wherein it was held that the number of dependents shall be taken into consideration while calculating one’s deduction of personal expenses. However, while calculating the future prospects of the deceased it allowed a 40% increase on the same owing to difficulty in calculating one’s future prospects and by placing reliance on the decision of the Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 wherein it was decided to make the quantum of compensation just and reasonable. The court also awarded unprecedented damages under the head “loss of consortium”, which relates to the right of spouse to the company care, help, etc. It thereafter went on to enhance the amount awarded towards the children of the deceased and for the funeral expenses as well. The Court, therefore, reassessed and enhanced the compensation amount partly to what the Tribunal had declared, and it also directed the rate of interest to be at 9% per anum in accordance with the Reserve Bank of India Guidelines.[Arti v. Teja Ram, 2019 SCC OnLine Raj 1168 decided on 02-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V.K Jain (Presiding Member), J. allowed a revision petition filed by a farmer seeking enhancement of compensation provided for loss of his crops.

Petitioners herein were farmers who had bought seeds from the respondent society. The resultant crops were not up to the mark even though the petitioners had followed proper instructions and procedures and had taken due care and precautions required for the said crop. Aggrieved from the financial loss incurred, the petitioners approached the District Forum but their complaints were dismissed by the forum. Consequently, they approached the State Commission which allowed their appeals and directed the respondents to pay compensation to the petitioners. However, since the petitioners were not satisfied with the quantum of the compensation awarded to them by the State Commission, they approached the Commission by way of these revision petitions. The petitioners also submitted applications seeking condonation of delay in filing the revision petitions.

The Court condoned the delay considering the fact that the petitioners were poor farmers who were not awarded even the minimum price of the crop while assessing the compensation for the loss of the crop.

The Court, calculating the compensation for the loss of the crop at Rs 17,000 per quintal, awarded the petitioner, Vinod Kumar, Rs 3,40,000 and the petitioner, Vijay Kumar, Rs 1,02,000 in addition to compensation for the mental harassment and the cost of litigation awarded by the State Commission. The balance payment to the complainants was to be made within eight weeks from the date of the judgment, failing which it would carry interest at 9 per cent per annum from the date of institution of the complaint.[Vijay Kumar v. IFFCO, 2019 SCC OnLine NCDRC 78, decided on 17-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Appeal against the order of Motor Accident Claim Tribunal was entertained by Alok Singh, J. where the petitioner sought enhancement of the claim awarded by the Tribunal.

The deceased along with another was on a scooter, the deceased was a pillion rider, on their way the scooter was hit by an ambassador car, both the boys were grievously hurt and eventually deceased succumbed to his injuries. The claim of the family of the deceased was granted partly and thereby the appellant felt aggrieved by the order.

M.K. Goyal, Advocate for the appellants had challenged the judgment of the Tribunal on the following counts: first, Tribunal had failed to consider the monthly income of deceased as Rs 14,500; second Tribunal had applied the wrong multiplier and third, Tribunal had awarded fewer amount towards funeral expenses and no amount awarded for loss of estate. All the proper documents which ascertained the income of the deceased were annexed.

The Court regarding the submission of the appellant held that, Tribunal had not erred in making an order as related to the ascertainment of the income of the deceased as the documents submitted were not reliable. But further in respect to the multiplier, it stated that, “since deceased was aged about 18 years, therefore, Tribunal has erred in applying the multiplier of 13. In view of law laid down by the Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, the multiplier should be of 18.”

The Court noticed that funeral charges granted by the Tribunal was Rs 5000, which was increased by the Court along with the compensation towards loss of estate. It further revalued the income of the deceased and applied the multiplier of 18 and calculated the compensation.[Satish Kumar Garg v. Sri Nar Bahadur, 2019 SCC OnLine Utt 500, decided on 14-06-2019]

Case Briefs

Jharkhand High Court: Anubha Rawat Choudhary, J. allowed an appeal made by an insurance company regarding their extent of liability towards a deceased as mentioned in the insurance policy.

An FIR was lodged by the owner of a vehicle wherein it was stated that a person (deceased) was authorized to drive his vehicle. In order to save a cow while driving, that person met with an accident and died. His legal representatives (the claimant) filed a claim application, but the insurance company denied its liability. Motor Accident Claims Tribunal (MACT) allowed the claimant’s application under Section 166 of Motor Vehicles Act, 1988 and held the insurance company liable to pay compensation of Rs. 11 lakhs with 6 per cent interest. Hence, this appeal.

Issue: Whether the deceased, who was authorized to drive the vehicle, by the owner of the vehicle, is covered under the insurance policy and if so, to what extent.

Learned counsel Ashutosh Anand, on behalf of the appellant submitted that the Tribunal did not consider the fact that the deceased was driving the vehicle with the permission of the owner so, he won’t be considered a 3rd party as he stepped into the shoes of the owner and thus claimant would be entitled to compensation only after proving that there was no rash driving or negligence on the part of the deceased.

Learned counsel  K. K. Singh, on behalf of the respondent submitted that the point raised by the appellant were raised for the first time and not mentioned in its written statement. It was further contended that the appellant did not make any plea about their extent of liability before the Tribunal and referred to a judgment of Supreme Court Ramchandra v. Regional Manager, United India Insurance Company Ltd., (2013) 12 SCC 84, in which it was rightly held that the appellant was estopped from raising the plea for the first time at the appellant stage.

The Court noted that there was no rash and negligent driving on the part of the deceased as per the police report. It was noted that the reason for the appellant’s denial of its liability to pay compensation, was that the deceased was neither a 3rd party nor a paid driver of the insured owner. It was opined that the liability of the appellant under the policy would be governed by the terms and conditions of the insurance policy. The insurance policy did not cover the list of any gratuitous passenger and no additional premium for such coverage was paid by the insured against the policy.

It relied on the judgment in United India Insurance Co. Ltd. v. Sidharat Raju, 2014 SCC OnLine P&H 3117 where it was held that the deceased steps into the shoes of the owner of the vehicle, and therefore the claimant cannot be said to a third party for the purposes of awarding compensation under the Act. Further reliance was placed on National Insurance Company Ltd. v. Ashalata Bhowmik, (2018) 9 SCC 801 where it was held that liability of an insurance company would be only to the extent of personal accident coverage under the contract of insurance.

In view of the aforesaid decisions, it was held that the extent of liability of the appellant could only be 2 lakhs with 6 percent interest from the date of filing the petition till the payment is made.[TATA AIG General Insurance Co. Ltd. v. Shakuntala Ganeriwal, 2019 SCC OnLine Jhar 642, decided on 25-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Dispute Redressal Commission (NCDRC): A Coram of R.K. Agrawal (President), J. and M. Shreesha (Member) allowed an appeal against the order of State Consumer Dispute Redressal Commission, Punjab that directed a doctor to compensate an aggrieved couple for the death of their three year old daughter caused by gross negligence.

Respondent herein was the father of a three-year-old girl who was diagnosed with blood cancer. The child was admitted to appellant-hospital where Dr Raman Arora (appellant 3 herein) prepared a written protocol of the treatment detailing that the patient was to be given four cycles of chemotherapy for which injections of Vincristine were to be given intravenously and injections of Methotrexate were to be administered intrathecally. Dr Vandana Bhambri and Dr Harjit Singh Kohli assisted him. The patient was given three cycles of chemotherapy, and then her bone marrow test was conducted which showed that her condition had improved. The requisite injections for the fourth cycle were handed over to Dr Harjit Singh Kohli in a sealed packet where it was clearly written that the medicine Vincristine was to be administered intravenously only. However, Dr Kohli administered the injection intrathecally, which led to the depletion in the health of the patient and ultimately she died. The aggrieved parents of child (respondents herein) filed a complaint before the State Consumer Dispute Redressal Commission which held that the doctors and hospital (vicariously) committed gross negligence. The present appeal was filed by the hospital and doctors challenging the said order.

Learned counsel for appellants Y. Rajagopala Rao, contended that the injection Vincristine was not administered on the given date, and the State Commission had erred in giving a finding that Vincristine was administered by an anesthetist i.e. Dr Kohli. Furthermore, he stated that the Histopathology report and the chemical examination report read together with the post-mortem report did not state that the death was due to Vincristine injection. Moreover, the State Commission had failed to consider the expert report which opined that the cause of death in the present case was Toxaemia of Acute Lymphoid Leukaemia, which is a natural cause in case of cancer patients. Also, he argued that Dr Raman Arora is not liable as he did not administer the medicine.

Learned counsel for respondents, Prashant Sareen, contended that the injection was given by Dr Kohli who had testified that he, along with the help of Dr Vandana, had administered the injection intrathecally and later on acquired the knowledge that such administration was fatal. Moreover, he accused Dr. Arora for being negligent as he did not even read the ordinary precautions for treatment.

The Commission relied on S.K. Jhunjhunwala v. Dhanwanti Kumari, (2019) 2 SCC 282, and applied the principle of Bolam Test that gives grounds to hold a professional liable for negligence; and ruled that the doctors were negligent in their conduct. It was held that that admittedly the entire standard protocol was given by Dr Raman Arora and the entire treatment was rendered under his care. Therefore, he was liable for any acts/ commission or omissions done by his team or the assistants who assisted him in rendering treatment to the patient.

The National Commission remarked that the State Commission had rightly relied on the expert opinion given by the Indian Medical Association, Ludhiana which held the doctors responsible for gross negligence.

Placing reliance on Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, it was held that the hospital was vicariously liable for the negligent acts of its doctors.[Mohan Dai Oswal Cancer Treatment & Research Foundation v. Prashant Sareen, 2019 SCC OnLine NCDRC 75, decided on 24-05-2019]

Case BriefsHigh Courts

Karnataka High Court: H.T. Narendra Prasad, J. dismissed the appeal filed by an Insurance Company against the order passed by Motor Accident Claims Tribunal (MACT).

In the instant case, Jyothi and Nagaraj were traveling on a motorcycle and a lorry came in a rash and negligent manner and dashed against the motorcycle. As a result, Jyothi fell on the road and the lorry ran over her and she died while shifting her to the hospital. Hence, the parents of the deceased filed the claim petition before the Tribunal. The Tribunal granted compensation of Rs 6,96,000 with interest at 6 percent per annum. Being aggrieved by the same, the Insurance Company filed the present appeal.

The learned counsel for the petitioner, Lingaraj H S submitted that the Tribunal had erred in taking the multiplier based on the age of the deceased instead of based on the age of the mother. Further, the Tribunal was unjustified in adding 50 percent of the income of the deceased towards loss of future prospects while calculating the “loss of dependency”. Further, the compensation of Rs 25,000 each awarded to the claimants in the category of “loss of love and affection” was on the higher side. Therefore, the counsel for the petitioner prayed for allowing the appeal by reducing the compensation.

The learned counsel for the claimants, Nataraj Ballal relied on the law laid down by the Supreme Court in the case of National Insurance Co. Ltd v. Pranay Sethi, 2017 SCC OnLine SC 1270, in which it was held that in case the deceased was having a permanent job and was below the age of 40 years, an addition of 50 percent of the established income should be made. Further, as per the said decision, while calculating the “loss of dependency”, the age of the deceased had to be taken into consideration. Hence, the counsel for the claimants submitted that there was no error in the finding of the Tribunal. Therefore, he prayed for dismissal of the appeal.

The Court relied on the decision of Supreme Court in the case of Pranay Sethi, and held that multiplier had to be applied based on the age of the deceased and not based on the age of the mother of the deceased. Moreover, the Court also relied on the case of Magma General Insurance Co. Ltd v. Nanu Ram, 2018 SCC OnLine SC 1546 in which it was held that the claimants were entitled to compensation under the head “loss of love and affection”. Therefore, the Insurance Company has erred in taking the multiplier based on the age of deceased instead of based on the age of the mother and that the Tribunal was unjustified in adding 50 percent of the income of the deceased towards loss of future prospects while calculating the “loss of dependency”. Hence, the appeal could not be accepted and was unsustainable.

The appeal was dismissed accordingly.[Oriental Insurance Co. Ltd. v. Rathna, 2019 SCC OnLine Kar 566, decided on 29-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V.K. Jain (Presiding Member), J. addressed a complaint concerning the manufacturing defect in a “Mercedes CDI-220” car and directed for a compensation of Rs 2 lakhs along with litigation costs.

The facts of the case are, that the complainant/respondent had purchased a Mercedes CDI-22 car worth Rs 37 lakhs. Within a few days of the purchase, the car started to have various issues in respect to its doors, sunroof, shockers, etc., and due to which it had to be to fixed several times.

Further, on facing the above-stated issues several times, the complainant got the vehicle inspected and the report for the same stated that “there seemed to be an inherent manufacturing defect in the vehicle which the manufacturer was unable to locate and rectify.”

Complainant approached the concerned District Forum by way of a consumer complaint seeking replacement of the car or in the alternative, refund of the amount he had paid for the purchase of the car along with compensation, etc.

In the order of the State Commission after a proper formation of the expert committee and on receiving its report, it was directed to the complainant to pay a sum of Rs 2 lakhs with Rs 22,000 litigation costs. Appellant not being satisfied with the same approached NCDRC by way of appeal.

The National Commission opined that it was fully justified in relying upon the expert report and the grant of Rs 2 lakhs as compensation cannot be said to be excessive or unreasonable by any standards considering that the vehicle in question was a Mercedes vehicle which was expected to run smoothly without giving much trouble to the owner who has spent Rs 37 lakhs for the purchase of the vehicle.

Thus on consideration of the facts and circumstances of the case, the appeal was dismissed. [Mercedes Benz (India) (P) Ltd. v. Prince Bansal, 2019 SCC OnLine NCDRC 76, Order dated 30-05-2019]

Case BriefsHigh Courts

Patna High Court: Chakradhari Sharan, J. dismissed an application seeking initiation of fresh acquisition proceeding under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

A certain land was acquired under the Bihar Land Acquisition Act, 1894 in the year 1979 and award was prepared in favour of landowners. Petitioner herein, who was the grandson of a landowner, stated that since the Land Acquisition Officer had not prepared any award and had simply made a roll or index of compensation amount on Form-15, the same could not be treated as a valid award.

His case was that since the government had failed to make an award within two years of declaration under Section 6 of the Bihar Land Acquisition Act, the title over land remained with the owner and by virtue of Section 11-A of the said Act, entire acquisition proceeding stood lapsed. Whereas the respondent submitted that land owners were asked to receive the compensation amount, but they did not turn up to receive the same.

The Court noted that acquisition proceeding had started in the year 1978-79 and all land owners were paid the amount of compensation in 1979 itself on the basis of the award so prepared. The amount payable to the petitioner’s grandfather and his co-sharers was deposited by the Collector on 20-01-1981. In nearly three decades, no objection was ever raised against regularity or otherwise of the acquisition proceeding. Further, Section 18 of the Bihar Land Acquisition Act permits a person to make an application to the Collector, requiring him to refer the matter for the determination of the Court. Petitioner’s grandfather never approached the Collector under the said section seeking reference of the matter to Court. Most of the land owners had accepted the award.

It was observed that petitioner’s raising of grievance after almost 30 years, did not appear to be bona fide. His vague statements to the effect that landholders, being layman, could not raise any claim had no credence.

In view of the above-noted facts, the instant application was dismissed.[Alok Ranjan v. State of Bihar, 2019 SCC OnLine Pat 465, decided on 10-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Virender Singh, J. allowed the petition for reduction of the sentence on the ground that petitioner was the only bread winner of his family and had been diligently attended and cooperated in the trial.

A petition was made against the confirmation of the conviction and sentence under Sections 337 and 338 of the Penal Code, 1860.

The facts of the case were petitioner was driving the bus negligently and rashly due to which the bus turned turtle and the passengers were injured thereto. The charge sheet was filed against the petitioner and thereon he was charged, tried, convicted and sentenced and was directed to pay the compensation to the injured persons.

Nilesh Manore, learned counsel for the petitioner submitted that he was aggrieved by the term of the imprisonment and thus prayed to reduce the period of imprisonment as he had already served more than one-month imprisonment and the that he was facing the trial since 2008. It was further submitted that trial Court and the appellate Court itself has observed that he diligently attended and cooperated in the trial. It was further submitted that in lieu thereof, some fine may be imposed. It was further submitted that the petitioner was a driver, belongs to a poor family and was the only bread winner of his family and there was no criminal case prior to or after the incident been registered against him.

Sandeep Mehta, Public Prosecutor vehemently opposed the petition as the offence was against the public at large.

The Court opined that as the petitioner was only the bread winner of his family and there was no criminal record attributed to him. It was also opined that the incident took place all of a sudden. Thus, on the ground that the justice will be subserved if the petition was not allowed, the prayer of the petitioner was granted. [Kailash v. State of M.P, 2019 SCC OnLine MP 931, decided on 30-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. while hearing two miscellaneous appeals analogously, refused to exonerate the Insurance Company and modified the impugned award of the claimant by an enhancement of Rs 70,378/-.

A miscellaneous appeal was filed by New India Insurance Company Limited challenging the award dated 04-02-2015 on two grounds, namely that the driver of the offending vehicle was not having licence to drive a commercial vehicle, namely ‘Vikram’ bearing No. MP-07-R-1602 and therefore, Insurance Company should have been exonerated of its liability and secondly, the accident took place when the claimant Faiziya Khan was crossing the road and therefore, aspect of contributory negligence should have been taken into consideration. While, the appellant-Faiziya Khan, had filed an appeal to enhance the award passed in order to compensate her for her injuries.

The learned counsel for the insurance company, Mr Shrinivas Gajendragadkar, put forth a two-fold argument that firstly, the driver of the offending vehicle did not have a license to drive a commercial vehicle; and secondly, that the claimant was negligent in crossing the road. The counsel further relied upon Halki Bai v. Managing Director, Rajasthan State Road Transport Corporation, 2004(3) T.A.C. 821(M.P.), to support his contention that since claimant was crossing the road negligently, therefore, it will be a case of contributory negligence. The claimant, Faiziya Khan, on the other hand, maintained that the award passed in her favor was inadequate as compared to her injuries and pains and needed to be enhanced.

The Court dismissed the appeal by the insurance company observing that the Halki Bai v. Managing Director, Rajasthan State Road Transport Corporation, 2004 (3) T.A.C. 821(M.P.), was not applicable here as in the present case it has been mentioned in a report that the accident took place due to fault in the steering of auto. In view thereof, it was held that there was no contributory negligence on the part of the claimant.

The Court also cited Mukund Dewangan v. Oriental Insurance Company Ltd., (2017) 14 SCC 663 in which the Court had held that if a driver is holding the license to drive a light motor vehicle, he can drive a transport vehicle of such class without any endorsement. By relying on the aforementioned judgment, the Court refused to exonerate the Insurance Company on the lack of endorsement of the driver.

Ruling on the claimant’s appeal, the Court modified the impugned award by enhancement of Rs 70,378 in favor of the claimant by increasing the compensation for livelihood, transport and future treatment.[New India Insurance Co. Ltd. v. Mohd. Ajiz, 2019 SCC OnLine MP 818, decided on 08-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): A Coram of Justice Adarsh Kumar Goel (Chairperson) and S.P. Wangdi (Judicial Member), K. Ramakrishnan (Judicial Member), JJ., and Dr Nagin Nanda (Expert Member), directed that a sum of Rs 17.31 crores assessed by the Committee comprising Central Pollution Control Board (CPCB), Haryana State Pollution Control Board (HSPCB) and Deputy Commissioner, Panipat, be deposited by Indian Oil Corporation Ltd. (IOCL) Panipat Refinery within one month with the CPCB by way of interim compensation for restoration of the environment subject to further orders. Further action may be taken by the HSPCB in accordance with the law.

In the present case, a complaint was filed stating that air and water pollution caused by Panipat Refinery was causing large scale diseases affecting the inhabitants of the area. A joint team consisting of CPCB, HSPCB and deputy commissioner, Panipat was formed to assess the pollution caused. The report acknowledged enormous pollution. The samples from the Effluent Treatment Plant (ETP) were found to be non-compliant. Ambient air quality was exceeding the norms. Untreated effluent was found to be discharged in the green belt areas. Unit was not complying with the conditions of recycling and reusing treated water. ETP was not being operated efficiently and was not adequate. Untreated effluents were being stored in open storage lagoon without VOC recovery system.

Mr Aman Lekhi, learned Additional Solicitor General appearing for the IOCL responded to the report by the committee through a note which stated that the permission to discharge into Thirana drain was granted by the department of irrigation, Haryana Government. The respondent could not be made responsible for ambient air quality as the report by the joint committee itself was unable to attribute the same to IOCL and only said that the unit might be contributing to increase in values.

The Tribunal noted that IOCL could not justify the discharge of polluting effluents. Permission by the Pollution Control Board could be only to discharge effluents as per laid down norms. No dilution was available in the drain and norms were being violated. There was adequate material to hold that there is a violation of environmental norms.

The Tribunal disregarded the submission that no compensation may be required to be paid as the pollution was also contributed by others. The respondents could not avoid responsibility for the same. It was directed that a sum of Rs 17.31 crores assessed by the Committee may be deposited by the unit with the CPCB by way of interim compensation for restoration of the environment subject to further orders.[Satpal Singh v. Indian Oil Corporation Ltd. Panipat Refinery, 2019 SCC OnLine NGT 63, decided on 10-05-2019]

Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar, J. while allowing a land acquisition appeal, set aside the impugned award and restored the Collector’s award.

Respondent’s land had been acquired for laying down of railway line pursuant to a notification issued in 1991 under Section 4(1) of the Land Acquisition Act, 1894. Respondent received compensation on the basis of land value fixed by the Land Acquisition Officer. Later, in a reference under Section 18 of the Act, the reference court enhanced the land value of another land covered by the same notification, but categorized differently. The respondent preferred an application for redetermination of the compensation granted to him in tune with the award of reference court. The Collector redetermined the compensation payable to respondent based on the land value fixed by the reference court. Nevertheless, the first respondent sought a reference under Section 28-A(3) of the Act as, according to him, the Collector ought to have granted the land value granted by reference court. The reference court enhanced and refixed the land value of the acquired land as prayed for by the first respondent. Aggrieved by the said order, the instant appeal was filed by the State.

The Court observed that the the Land Acquisition Officer had categorized lands notified for acquisition for the purpose of fixing land value; and the land held by the respondent was covered under a different category than the one in respect of which the reference court had passed an order. It was for the said reason that the Collector had made a proportionate reduction while awarding compensation to the respondent.

Thus, the Court upheld the Collector’s proportionate reduction in redetermining the compensation payable to the first respondent while setting aside the reference court’s modification of the Collector’s award. It was opined that the reference court cannot treat a land included by the Land Acquisition Officer in one category as one included in another category and redetermine the compensation on that basis as done in the instant case, as such powers, though available to Court under Section 18 of the Act, are not available to the Court in a reference under Section 28-A(3) of the Act.

While setting aside the impugned award and restoring the Collector’s award, the Court also observed that the object of Section 28-A(3) of the Act is to enable those who could not avail the remedy under Section 18 of the Act to obtain compensation for the lands acquired from them also.[Karunakaran Nair v. State of Kerala, LA App. No. 229 of 2016, decided on 20-03-2019]

Case BriefsHigh Courts

Gauhati High Court: Suman Shyam, J. dismissed an appeal filed by an insurance company against the order of the Commissioner directing payment of compensation to an employee for permanent disability endured during his employment, as a result of an accident.

In the present case, the respondent met with an accident while driving an insured vehicle, and resultantly he suffered many injuries. The respondent filed a case for payment of compensation before the Workmen Compensation Commissioner, for compensation on the ground that the injuries suffered by him in the accident had resulted into his permanent partial disablement leading to loss of his earning capacity. The Commissioner awarded the payment of Rs 1,71,234 to the respondent after taking into consideration his monthly salary of Rs 3500 and the testimony of the doctor according to whom, the respondent had suffered 25 per cent permanent disability reducing his earning capacity by about 40 per cent. The present appeal had been made by the insurance company against the order of the Commissioner, Workmen Compensation under Section 30 of The Workmen Compensation Act, 1923. 

The learned counsel for the appellant, M. Choudhury, contended that the payment of compensation for loss of earning capacity cannot be worked out on the basis of mere assumption of a doctor, i.e., the doctor has only got a speculative role in deciding the percentage of loss in the income of the respondent/claimant. Furthermore, the salary of the respondent should not be taken into consideration while the calculation of the compensation. She also placed reliance on the judgment of Oriental Insurance Company Ltd. v. Bimal Pathar, 2017 SCC OnLine Gau 1292.

The learned counsel for the respondent Rajbarbhuiya contended that the credibility of the testimony of the witness doctor was never questioned or challenged by the appellant. before the Commissioner. He further said that the plea of the appellant should not be entertained, keeping in mind the beneficial object of the Act.

The Court observed that the daily allowance earned by a workmen can be taken into consideration while calculating the compensation. It was opined that the case of Oriental Insurance Company v. Bimal Pathar, 2017 SC OnLine Gau 1292,  itself gave this principle and the reliance of the appellant’s counsel on the given case mitigated the scope of dissent in this regard. It was further observed that the testimony of the doctor in the present case, was not merely speculative in nature. The same had been substantiated through X-ray reports and further fortified through the disability certificate presented by the respondent.

It was opined that though this Court was the court of the first appeal in this matter by virtue of Section 30 of the Act, it would not entertain a factual dispute which was not even raised by the appellant herein, at the time of the trial. Thus, the appeal was dismissed and payment of the balance amount to the respondent was ordered within six weeks.[United India Insurance Company v. Naren Deka, 2019 SCC OnLine Gau 2259, decided on 07-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of S. Kumar, J. dismissed an appeal filed by the insurance company against the judgment and award passed by Motor Vehicle Accident Claim Tribunal, Bihar.

The son of claimant died on the spot when a vehicle dashed against him. As a result, he filed a complaint against the driver (Opposite Party 2) under Sections 279 and 304-A of the Penal Code, 1860. The offending vehicle was insured with the New India Assurance Company Ltd. (Opposite Party 3) and the claimant made claim for payment of compensation amount Rs 6 lakhs. The District Judge-cum-Motor Vehicle Tribunal granted compensation of Rs 3,65,000 to the claimant. Aggrieved by the quantum of compensation granted, the New India Assurance Company Ltd. filed an appeal against said judgment and award.

The Court dismissed the appeal placing reliance on the judgment of Apex Court in Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65, and held, “the claimants are entitled for compensation of the amount as granted by the Tribunal and not inclined to interfere with the quantum of compensation amount granted by the Tribunal.” It also directed the insurance company to pay the amount of compensation to the claimant, with an interest at 6 per cent from the date of filing of the claim application till its realization within two months, from the date of receipt of the order passed by the Court. [New India Assurance Company Ltd. v. Amiri Khatoon, 2019 SCC OnLine Pat 630, Order dated 06-05-2019]

Case BriefsHigh Courts

Allahabad High Court: This petition was filed by petitioners before the Division Bench of Pankaj Kumar Jaiswal and Dr Yogendra Kumar Srivastava, JJ. praying for a direction to the respondent to decide the application of petitioner filed under Section 28-A of the Land Acquisition Act, 1894 and to re-determine compensation sought to be given to the petitioner.

Facts of the case were such that a notification was issued under Section 4(1) of the Act, 1894 where an award was passed by the Special Land Acquisition Officer, Ghaziabad in respect of certain land parcels. Petitioner did not challenge the aforementioned award under Section 18 of the Act but the same was challenged by other persons which gave rise to land acquisition references decided by District Judge thereby re-determining the compensation amount. It was against this judgment that the first appeal was filed which was decided with the re-determined compensation amount. Under the decision in the first appeal, the petitioner filed an application under Section 28-A of the Act to claim the benefit of the re-determined compensation. This application was rejected.

The question before Court was to decide if the application was time-barred under Section 28-A of the Act which mentioned about re-determination of the amount of compensation on the basis of the award of the Court within 3 months of its decision. Thereby leading to the second question from which Court’s decision the time period was to be calculated i.e. Reference Court or High Court first appeal. 

Krishna Mishra, learned counsel on behalf of petitioners, submitted that the time period for claiming the benefit of re-determined compensation amount was to begin after the decision in the first appeal and since their application was within that time period the application was validly made. Suresh Singh learned Addl. Chief Standing Counsel appearing on behalf of State respondents, submitted that the limitation period to file application was to be taken from the date of the award made by Reference Court which means that petitioner’s application was time-barred.

Under the Act, Court was defined to mean a principal Civil Court of original jurisdiction. Catena of cases were referred to concluding that limitation period should be computed from the date of award of Reference Court on basis of which re-determination was sought and not from the appeal which was filed against the award. Accordingly, the application thus filed was beyond the time period of 3 months if computed from the award of Reference Court. Further, proviso of the Section did not state any other reason for the extension of the time period than to obtain a copy of award.

High Court on the discussion above was of the view that petitioners could not have claimed the benefit of re-determined compensation as their application was time-barred. The application was to be filed within 3 months of the award passed by Reference Court and not after the decision of High Court in first appeal. Therefore, this petition was dismissed. [Tejpal Singh v. State of U.P., Writ C No. 7218 of 2019, Order dated 08-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission: Justice V.K. Jain (Presiding Member), allowed a consumer complaint seeking a refund of money paid to book a residential flat in a construction project being carried out by the developer. 

Complainant herein had booked a residential flat in a project started by the opposite party (OP) by paying a booking amount of approximately Rs 1 crore. As per the allotment letter dated 20-02-2015, possession of flat was to be delivered to the complainant by March 2015; though an additional grace period of six months was available to the OP which could be invoked in case the possession was delayed due to unforeseen circumstances. However, the complainant was not given the possession even after almost 3.5 years.

The OP resisted this complaint on the ground that the delivery of possession got delayed as land on which project was to be developed was acquired by Yamuna Expressway Industrial Development Authority (YEIDA), and the said acquisition was challenged by landowners in Allahabad High Court. Further, the National Green Tribunal had prohibited the use of groundwater for construction purpose. Also, the supply of raw material and labour was disrupted due to strikes/agitation by the farmers whose land was acquired.

The Commission noted that the aforestated contentions had already been considered and rejected by it in its order dated 16-04-2019 in STUC Awasiya Grahak Kalyaan Association v. Supertech Ltd. (CC No. 2335 of 2017). In that case, this Commission had clearly held that it was for the OP to arrange water for construction purposes from alternative sources. Further, the land acquisition challenge had been decided by Allahabad High Court in October, 2011 itself and while the Supreme Court did uphold the said High Court’s judgment in appeal, no order was passed restraining builders (particularly the builders in YEIDA) from raising construction on the land. Moreover, the agreements with the complainant had been executed much later than the Allahabad High Court’s decision. Lastly, no direct evidence had been led by the OP to prove the dates on which farmers had actually prevented the construction work.

It was noted that the completed drawings were submitted by the OP on 15-02-2015 itself, which meant that the construction had been completed by that date but the requisite Completion Certificate/Occupancy Certificate had still not been issued.

Reliance was placed on the judgment in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, 2019 SCC OnLine SC 458 where it was held that complainants cannot be made to suffer and wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

In view of the above, the complaint was allowed and OP was directed to refund the entire amount received from complainant, and also compensate them in the form of simple interest of 10 percent per annum from the date of each payment to the date of refund. OP was also directed to pay litigation costs of Rs 25,000 to the complainant.[Ajai Kumar v. Supertech Ltd., 2019 SCC OnLine NCDRC 63, Order dated 22-04-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of Sanjay Kumar Dwivedi, J. allowed an appeal and set aside the order passed by Tribunal for disallowing the claim petition of the said appellant against the respondent Railways.

The appellant contented to the Tribunal that delivery of goods was not within the stipulated time period and also the quantity of goods which in this particular case was oil was less than that of actual consignment and the seal of the said goods were broken. All the measurements of goods and the condition of goods were examined by the private staff along with the respondent’s staff, i.e., the Railway’s commercial staff. The aggrieved appellant claimed for the damages sustained due to criminal interference in transit along with compensation. The appellant submitted that the consignment was delivered after six months and there was laches on the part of the Railways and the Railways was responsible and the Tribunal committed an error by dismissing the claim of the appellant.

The respondent Railways argued that the examination of goods was not made by the appropriate authority and all the contentions of the appellant regarding the seal breakage and quantity has no substance as no short certificate was issued. They further submitted that when the goods are not loaded at the Railways siding according to the Act, Railways cannot be held liable for damages and in this particular case the goods were loaded at the siding of the appellant.

The Tribunal adjudicated the matter in favor of the respondent Railways and discharged their liability to pay any compensation for damages caused to the appellant; it further dismissed the appellants claim for compensation.

The Court observed the contentions of the appellant suggesting “In view of Section 93 of the Act, the Railway is responsible for the loss, destruction, damage or deterioration in transit, or non-delivery of any consignment. Section 95 of the Act provides that Railway Administration shall not be responsible if the railway proves that the delay or detention arose for reasons beyond its control or without negligence or misconduct on its part or on the part of any of its servants.” Court relied on the arguments of appellant relating to Section 99 of the Act, which held Railway administration as a bailee under the Indian Contract Act, 1872 hence, abiding with all the duties of a bailee related to loss, destruction and damages etc.

The Court held, “Railways has to deal with the goods put in its care as a bailee and has to take the same amount of care for the goods as a man of ordinary prudence not only during period of transit of goods from the station of origin to the station of destination but for a period of 7 days after the termination of transit.” The Court further found that consignment was properly secured when placed with Railways and the Railways staff had full accessibility to examine the loading and unloading of goods. There was unnecessary delay in the delivery of the goods for which railways had no explanation. Court reversed the order of Tribunal and held Railways liable for the damages and delay of goods and granted compensation to the appellant.[Rajinder Kumar Mohal v. Union of India, MA No. 65 of 2017, decided on 02-05-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J. dismissed the suit for realization of the insurance money on the ground that no communication of renewal of the policy was made at the time of the alleged occurrence and no risk could be assumed in the absence of any valid policy.

The facts of the case were that the plaintiff was the owner of a shop, he availed a cash credit loan of Rs 20,000 from the State Bank of India. He had stock of Rs 30,000 in the shop. The Bank insured the shop with the New India Assurance Co. Ltd. After the expiration of the policy, he sent a letter along with a cheque of Rs 300 to defendant 1 for renewal of policy for another year. In the meanwhile, a theft was committed in the shop in which goods worth Rs 45,383 was stolen. The plaintiff claimed insurance money. The defendant, denying the liability pleaded that the plaintiff had not sent a letter along with a cheque of Rs 300 to defendant 1 for renewal of policy on time and it was received after the expiration of the policy, thus there was no risk covered on the day the theft happened as there was no policy on the date of the occurrence. Thus there was no liability to pay compensation.

The Court held that the cheque was sent after the expiry of the policy. No communication was made by the defendant to the plaintiff about the acceptance of the proposal. No policy was issued by the defendant. There was no concluded contract. Thus the defendant was not held to be liable to pay any amount towards the alleged loss sustained by the plaintiff. The appeal was thus dismissed. [Prasanna Kumar Acharya v. Oriental Insurance Co. Ltd., 2019 SCC OnLine Ori 157, decided on 10-04-2019]