Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sanjay Dwivedi, J. dismissed a revision petition filed questioning the validity of the order passed by the Sessions Judge whereby the charge had been framed against the applicant by the trial Court under Sections 294, 333, 353, 307, 302 of IPC and under Section 25-1(B)(B) of Arms Act, 1959.

As per the facts of the case, after registration of FIR, the injured got hospitalized and was given treatment in Govt. Hospital in which the Medico-Legal Certificate (MLC) was prepared showing that the complainant/injured had received an incised wound which was opined as simple injury. The injured was later on discharged from hospital on the same day, i.e. 07.08.2021 because the injury sustained by him was neither grievous in nature nor dangerous to life. Case against the applicant was under Sections 294, 333, 353 and 307 of IPC. Later, on 20-08-2021 when the injured died then the offence of 302 was also added.

The Counsel of the applicant submitted that the applicant was granted bail considering the fact that the injury was simple and that the injured died of septicaemia on 20-08-2021. He submitted that offence of 302 of IPC was not made out as it was due to negligence on the part of the doctors as they had not properly treated the injured and medication was not up to the mark. It was further contended that the Trial Court did not appreciate the facts in appropriate manner and observed that the cause of death was related to the injury sustained and caused by the present applicant.

Panel Lawyer appearing for the respondent/State submitted that the cause of death shown by the doctor is septicaemia which admittedly got developed in an injury caused by the present applicant and as such, offence under Section 307 has rightly been converted into Section 302 of IPC.

The Court was of the opinion that at this stage it is very difficult to form an opinion even by the trial Court at the time of framing of charge that the cause of death was not directly related with the injury caused by the applicant. The Court believed that if the charge of Section 302 has been added at the time of framing of charge on the basis of opinion given in the MLC, the same can be altered only after examination of the doctor who had given opinion.

The Court stated that at this stage, trial Court cannot indulge in critical evolution of evidence, that can be done at the time of final appreciation of evidence after conclusion of trial.

The Court while dismissing the appeal held that the Trial Court did nothing wrong because it can very well form an opinion at the time of trial or after conclusion of trial whether offence under Section 302 is made out or not. The Court further noted what was said in Veerla Satyanarayana v. State of Andhra Pradesh, (2009) 16 SCC 316 wherein the Supreme Court has held that if death is caused due to septicaemia, offence under Section 302 of IPC is rightly made out. Thus, the Court was also of the opinion that the order passed by the trial Court does not suffer from any patent or material irregularity and at this stage, it is not proper for this Court to interfere in the same or to form an opinion that the offence under Section 302 is not made out against the applicant.

[Harsh Meena v. State of Madhya Pradesh, 2022 SCC OnLine MP 1971, decided on 17-08-2022]


Advocates who appeared in this case :

Sankalp Kochar, Bhavil Pandey, Advocates, for the Applicant;

Prakash Gupta, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. allowed a writ petition issuing directions to the Tripura State Electricity Corporation Limited to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner-employee under his service condition.

It was the case of the petitioner that while the petitioner was discharging his duties, he suffered an accident and out of that accident, he became disabled. Due to such disability, he could not attend his duties. It was the contention of the respondents that the salary of the petitioner was duly paid upto 16-03-2020. Thereafter, no salary was paid to the petitioner though he was all along willing to join to perform his duties commensurate to his disability. Report of the Standing Medical Board made it clear that petitioner was not in a position to perform his official and field level activities which may work out throughout the State and that his conditions may improve. In spite of that report, the petitioner was not paid his due salary and other allowances treating his absence from duty as unauthorized.

The Court reproduced the office memo dated 25-02-2015 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions and stated that it was further reviewed in the year 2016 where the rights of persons with disabilities were not in any way diluted rather expanded the rights of such persons. It mandates that the State-employer must create conditions in which the barriers posed by disability can be overcome.

The Court noticed that a plea has been taken that the respondents did not accept his joining report or leave application as he did not report to the joining authority in person however he expressed his willingness to join his duties by submitting an application to the authority concerned but it was refused on the pretext that the petitioner did not physically appear before the concerned authority.

“The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation.”

The Court relied on Vikash Kumar v. UPSC, (2021) 5 SCC 370 which had an observation that the Rights of Persons with Disabilities Act, 2016 is a “paradigm shift” and further overview of the scheme of 2016 Act was also discussed.

Keeping in mind the facets and objects of the 2016 Act the Court directed that:

(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;

(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;

(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;

(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;

(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made herein above;

(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7(seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and

(vii) it is not advisable to send the petitioner to the Medical Board time and again.

The writ petition was thus allowed.

[Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corpn. Ltd., 2022 SCC OnLine Tri 547, decided on 01-08-2022]


Advocates who appeared in this case :

C.S. Sinha, Advocate, for the Petitioner (s).

N. Majumder, H. Sarkar, Advocates, for the Respondent (s):


*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While adjudicating a case relating to life-threatening potholes on National Highways in Kerala, Devan Ramachandran, J. held that access to good roads is the right of citizens. Lamenting the sorry state of highways in the State, the Court expressed,

“Even though this Court has been issuing orders after orders, the roads turn into disrepair after initial and temporary restoration; and it is in such context that directions had been earlier issued to even initiate vigilance cases and other proceedings against Engineers and contractors.”

Noticeably, a person had died by falling into a pothole on the National Highway at Athani. The Amicus Curiae, Vinod Bhat brought it to the Court's notice that some stretches of the NH, particularly at Chalakkudy, Kodungalloor, Orumanayoor etc. have huge craters and potholes.

“The death of a person certainly shocks this Court; and in fact, couple of years ago it was this that spurred the various directions earlier issued.”

National Highway Authority of India (NHAI), conceded that there were some problems with the stretch in question and that since the stretch in question is part of the Highway covered under a “Build-Operate-Transfer” agreement with the Concessionaire; they are responsible for its upkeep, maintenance as also its restoration.

NHAI submitted that steps had already been taken to repair every stretch of the National Highway across the State to ensure that such instances do not recur. The work is entrusted to new contractors, at the risk and cost of the earlier ones. Shifting the liability on the earlier contractor, NHAI submitted that the agreements in question specifically enumerate the responsibilities of such Concessionaires, including to pay damages and compensation in the event of accidents, injuries, and death.

The State government submitted that steps had already been taken to cause an enquiry into the accident and that a necessary criminal investigation is underway.

The Amicus Curiae informed the Court that he had met the family of the victim — who survived his wife and two young children, one of whom is studying in college, while the other is still in school. The victim was returning home after a full day of work, when he hit the pothole which was filled up with water, thus being virtually invisible, leading to the fatal accident.

Considering the aforementioned submissions, the Court expressed,

“The gravity of the situation in Kerala is now for all to see. We do not react until we are the victim or someone, we know faces such a situation. It is always as if accidents only happen to others and not to ourselves. But this is a myth, as anybody with reasonable sense would reckon.”

Statutory Reliefs

Referring to compensation provisions, the Court observed that Section 198-A(2) of the Motor Vehicles Act, 1988 provides for fines and payment of compensation; further there are such provisions in the Concessionaire agreements also. Similarly, Section 8-B of the National Highways Act, 1956 provides for compensation and damages in the case when anyone causes distress or damage to a National Highway. However, the Court noted,

“Needless to say, we have provisions and provisions, but it is seldom put to effective implementation.”

The Court noted that the Disaster Management Act, 2005, is a classic piece of legislation, which empowers the District Collectors — who are the heads of the District Disaster Management Authority – to take action to avoid every disaster. Observing that the word ‘disaster' is defined in the said Act to include a mishap of calamity through man-made causes, the Court said,

“A road being potholed and craters being allowed to be formed, are certainly man made causes, particularly because it can only be seen to be on account of the total negligence or indifference of the concerned Authorities, including Engineers as also the Concessionaires and contractors who are entrusted with the work.”

Duties of District Collectors

The District Collectors cannot be mere spectators and react solely when an accident happens; but they are certainly enjoined to act to avoid it. This is the true spirit of the Disaster Management Act. However, this Court is yet to see any notification or order issued by a District Disaster Management Unit until an accident happens; and it is no different today, the District Collector, Ernakulam has now issued such an order.

“I fail to understand the purpose of an order issued under the Disaster Management Act after an accident has happened. It is surely for the Disaster Management Authority of every District to act proactively to ensure that such do not happen, whether that be in the National Highway, PWD Roads, or any other road under the control of the various Local Self Government Institutions.”

The Court noted that the District Collectors, in their capacity as the Heads of the District Disaster Management Authorities, have a definitive role to play and the Authorities under them have to be alive to any issues on the roads, particularly relating to potholes and craters. Even solitary ones will have to be taken note of and acted upon, fixing full responsibilities upon the Engineers, contractors, and other persons entrusted with the road. Since the Court cannot keep on passing orders every time there is a disaster and it is for the District Collectors to act.

Conclusion & Directions

In the light of the above, the Court while suo motu impleading the Regional Officer, NHAI, as an additional respondent issued following directions:

  • NHAI will make available the copy of the Concessionaire agreement by the next posting date.

  • The competent Authority of NHAI will cause an enquiry into the accident in question as also on the other stretchers which has gone into disrepair and file a report fixing responsibility on Engineers/Concessionaires as the case may be.

  • NHAI will take immediate steps to rectify every road under their control, either through the present Concessionaires or through new contractors; but which shall be done without any further delay, but within one week.

  • The District Collectors will issue orders with respect to any road in which potholes are found and take necessary action against the jurisdictional Engineer, contractors or any other person who may be responsible. All corollary consequences thereto will also follow, to the fullest warrant of law.

  • The earlier directions of this Court to initiate Vigilance cases and other investigation, will continue to hold effect and it will be supplementary to the afore directions.

Additionally, noticing that Section 7 of the National Highway Act provides the manner in which fees and tolls can be collected by the NHAI or by the Concessionaire, the Court stated that the collection of tolls normally would pre-suppose the responsibility on the Concessionaire or the competent Authority to maintain the roads in the best manner.

The matter is listed on 19-08-2022 for further hearing.

[C.P. Ajithkumar v. State of Kerala, WP(C) No. 32680 of 2008, decided on 08-08-2022]


Advocates who appeared in this case :

Advocate Tom K. Thomas, Advocate, for the Petitioner;

Vinod Bhat, Advocate, for the Amicus Curiae;

Standing Counsel Bidan Chandran, Advocate, for the NHAI;

Senior Government Pleader K.V.Manoj Kumar, Advocate, for the State.


*Kamini Sharma, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

Madras High Court– G Chandrasekharan, J. ordered further investigation into the case where a man died under suspicious circumstances and alleged negligence on the part of the Police and the Medical Authorities. The Court thus directed the State to pay compensation to the aggrieved family.

A writ petition was filed seeking issuance for further investigation by an independent agency regarding the suspicious death of the petitioner’s husband, N. Arumugam. The petition also seeks direction to the respondents to pay an exemplary compensation of Rs.25,000 to the petitioner, her three children and the aged father-in-law and mother-in-law who have alleged to been deprived of their means to livelihood due to the death of their husband.

The petitioner contended that after the death of the husband, a final report was filed closing the investigation as ‘charge abated.’ The petitioners also apprehended that her husband might have been hit by a heavy vehicle with a possible involvement of a VIP and her husband was deliberately shown as an accused in order to suppress the true manner in which he suffered injuries. The petitioners highlighted that no surgical intervention was made within due time.

Counsel for the petitioner relied on the judgement of Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, where it was held by the Supreme Court that the relief of monetary compensation as exemplary damages under Article 32 of the Constitution or Article 226 of the High Court is a remedy available in public law and is based on strict liability. Further reliance was placed on the judgement of Supreme Court in DK Basu v. State of West Bengal (1997) 1 SCC 416 where it was held that monetary or pecuniary compensation is an appropriate and effective remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants.

It was contended by the respondents that the petitioner’s husband was under the influence of alcohol. It was noted that though he was conscious, he was not able to speak due to his head injury. It was further contended by the respondent that the deceased was mainly responsible for the accident by drunken driving and therefore he was himself shown to be an accused.

Placing reliance on Harish Kumar Khurana v. Joginder Singh, (2021) 10 SCC 291, it was contended that the finding of medical negligence must be based on proper medical evidence on crucial medical aspects. Subsequent reliance was placed on the judgement of Ganesh Nayak v. V. Shamanna, 2022 SCC Online Kar 131 for the proposition that there must be a nexus between the procedure and death of the patient must be established for medical negligence.

The Court noted that the Police Department, especially the Police personnel serving in the Kudimangalam Police Station as well as the Doctors, Nurses and staff members attending the deceased N. Arumugam had violated the fundamental right of the deceased N. Arumugam for competent medical treatment. Therefore, the Court was of the view that the petitioner was entitled for compensation under public law remedy and a Writ of Mandamus could be issued for issuing directions to the first respondent to pay compensation.

The Court directed that there was a need to further investigate the case and relied on the judgement of Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685 where it was observed that the learned Magistrate can order further investigation if the same has been found to be tainted or it is necessary for achieving the ends of justice. Further reliance was placed on the case of Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 to observe that “fair and proper investigation” has dual purpose of ensuring that the investigation remains unbiased and is in accordance with the law.

For determining the scope of compensation, the Court relied on the judgement of National Insurance Company v. Pranay Sethi, (2017) SCC OnLine SC 1270, where the Court had adopted the procedure followed in Motor Vehicle Accident Cases for fixing the compensation and the compensation for the victim of motor vehicle accident was determined.

The Court directed further investigation into the case and directed the first respondent to pay compensation amount of Rs15,00,000 to the petitioner at 6% interest per annum.

[Muthulakshmi vs The Secretary to the Government of Tamil Nadu, 2022 SCC OnLine Mad 3751, decided on 20-7-2022]


Advocates who appeared in this case :

Mr. M. Purushothaman (In both W. Ps’), Advocate, for the Petitioner;

Mr. P. Kumaresan (In both W. Ps’) Additional Advocate General, for the RR 1, 3, 5 & 8;

Mr. Pratap (In both W. Ps’) Government Advocate, for the RR 2, 4, 6 & 7.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri J. dismissed the petition as the employer-employee relationship was established by a witness before the court and strict rules of evidence are not applicable in such cases. 

  

The facts of the case are such that Respondent 1 (hereinafter, referred to as ‘the workman’) filed a claim application seeking compensation under the Employees’ Compensation Act, 1923 for injury suffered by him during the course of his employment with the firms namely, Sanjeev Hosiery and Maha Laxmi Hosiery. He was working as a Machine Man since January, 2003 till November, 2005 and his last drawn salary was Rs.8, 000/- per month when he met with an accident. It was claimed that the workman at the time of the incident was about 33 years of age and had suffered disability of about 60%. It was also stated that the services of the workman were terminated on the same day i.e., the date of the incident. The Commissioner, while passing the impugned order allowed the claim petition of the workman and awarded him compensation of Rs. 2, 87,136/- along with interest @ 12%. The instant appeal under Section 30 of the Employees’ Compensation Act, 1923 (hereinafter, referred to as the ‘Act’) was filed seeking setting aside of the order/judgment passed by the Commissioner, Employee Compensation, North District, Delhi. 

  

Counsel for appellants submitted that that the workman has failed to discharge the onus of proving the employer-employee relationship as the workman has claimed that no appointment letter, identity card, attendance card, etc. was ever given to him by the management in question. 

  

Counsel for respondents submitted that the procedure before the Employee Compensation Commissioner is summary in nature and thus rules of evidence are not to be strictly followed. 

  

Issue 1: Relationship of Employer and Employee 

The Court observed that inasmuch as the workman has claimed that no appointment letter, identity card, attendance card, etc. was ever given to him by the management in question. The statement of the workman to this effect is supported by that of co-workman, who was admittedly an employee of the firm(s) on the date of the accident and stated that such documents were not provided to employees by the management. It has also come on record by way of the Inspectors’ reports that the firm(s) in question was not registered. 

  

Issue 2: Reports not proven by scribe 

The Court relied on judgment Om Prakash Batish v. Ranjit, (2008) 12 SCC 212 and opined those proceedings before the Commissioner under the Workmen’s Compensation Act, the provisions of Code of Civil Procedure and Evidence Act are not applicable. The Commissioner can lay down his own procedures and for the purpose of arriving at the truth, rely upon such documents which are produced before it. 

  

The Court held “respondent 1/workman was able to establish his case before the Commissioner; the appeal is dismissed and directed the Commissioner to release the compensation amount in favor of the workman forthwith.” 

[Maha Laxmi Hosiery v. Govind Singh, FAO 548 of 2016, decided on June 6, 2022] 


Appearances: 

For petitioner- Mr Kaushal Yadav and Mr Manish Bansal 

For respondent- Mr Hari Kishan and Mr HS Kohli 


*Arunima Bose, Editorial Assistant has reported this brief.

 

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: S.G. Mehare, J. allowed an appeal against the order passed by the Commissioner for Workmen’s Compensation and Judge Labour Court dated July 30, 2001. 

Appellant was a driver with respondent 1 who owned a truck which was insured with respondent 2. He met with a vehicular accident on April 13, 1997, sustained the injury to his femur and toe of the left leg. He sustained 35% physical disability. He was employed with respondent 2 on the day of the accident. He could not work as before the accident. He served the notices to both respondents. However, none of the respondents paid him the compensation. Thus, he filed application under Section 3 and 22 of the Workmen’s Compensation Act 1923 (now Employees Compensation Act 1923) where Commissioner rejected his Claim for the reason that the appellant had already approached the Motor Accident Claims Tribunal and had received the compensation under section 140 of the Motor Vehicles Act 1988 (hereinafter ‘M.V. Act’) making the claim barred under section 167 of the M.V. Act. Hence, the instant appeal.  

The counsel for the appellant argued that Commissioner has misread and misinterpreted section 167 of the M.V. Act. An application under Section 140 of M.V. Act has been excepted from the bar envisaged in Section 169 of M.V. Act and an application for compensation either under the Workmen’s Compensation Act or M.V. Act, is maintainable. 

Counsel for respondent 2 argued that appellant was exercising the remedies simultaneously by suppressing the material facts from the court. 

The point of consideration for the Court was, “Whether the compensation granted under chapter X of the M.V. act forfeits the right of the employee to claim the compensation under section 3 of the 1923 Act as provided under Section 167 of the M.V. Act ?” 

The Court reproduced Section 167 of the M.V. Act  and explained that words in section 167 of M.V.Act, “Without prejudice to the provisions of Chapter X”, are self speaking to interpret the said section that an application decided by the Claims Tribunal under section 140 of the said Act, does not bar the employee from availing remedy for compensation under the 1923 Act on the principles envisaged in the said Act. Reading section 167 would reveal that chapter X of the M.V. Act has no application while opting for the forum to claim the compensation. 

The reliefs granted under chapter X of the M.V. Act would not come in the way of claiming compensation before the Commissioner of Employee’s Compensation or the Claims Tribunal. 

The Court concluded that, Where the employee receives compensation under Chapter X of the M.V. Act, his remedy to seek compensation either under the 1923 Act or the M.V. Act cannot be forfeited under section 167. Such an employee has an option to move an application for compensation either under the 1923 Act or M.V. Act. 

The appeal was allowed holding that Commissioner has misread and misinterpreted Section 167 of the M.V. Act and erroneously dismissed the application of the appellant and the matter was remitted to the Commissioner of Employee’s Compensation for determination of the compensation afresh. 

[Narayan v. Sangita, 2022 SCC OnLine Bom 1214, decided on June 6, 2022] 


Mr B. R. Kedar, Advocate for Appellant 

Mr S. G. Chapalgaonkar, Advocate for Respondent 2 


*Suchita Shukla, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road. When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave dash to the Tata Tempo vehicle which was in stationary condition and caused the accident.

Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputed. Further, even his left leg was damaged badly.

Hence, the owner of the vehicle lodged an FIR against the truck driver.

Appellant filed injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly.

Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.

Analysis, Law and Decision


High Court expressed that it is the statutory duty of the tribunal and the Court as well to award “just compensation”.

Further, the Bench added that, the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the tribunal and the Court must be on a large peripheral field.

Additionally, the Court stated that the impact of amputation of leg on the earning capacity of the appellant/claimant needed deep consideration.

Due to amputation of right leg of the appellant, certainly he is unable to discharge his work and job as a Cleaner on the vehicle. It has severe impact on the earning capacity of the appellant/claimant. 

In the case of Jakir Hussein v. Sabir, (2015) 7 SCC 252, it is held by the Supreme Court that though the claimant is suffering from permanent disability of 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability. It is a case of amputation of one leg.

In the present matter, the Tribunal did not consider the severe impact on the income of the claimant due to amputation of the right leg below the thigh and left leg badly damaged.

In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury.

The Court observed that the purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.

Hence, the tribunal had committed an error in accepting the permanent disability of the claimant at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Therefore, the compensation needed to be re-assessed.

High Court concluded that respondents are liable to pay the enhanced amount of compensation jointly and severally with interest @ 7%. [Akshay v. Kailas Vitthalrao Shinde, 2022 SCC OnLine Bom 830, decided on 18-4-2022]


Advocates before the Court:

Mr Sanket S. Kulkarni and Mr Mukeshkumar R. Singh, Advocates for appellant Mr V.P. Savant, Advocate for respondents no.1

Mr Abhijit G. Choudhari, Advocate for respondent no.2

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., while addressing a case of negligent driving, expressed that,

“…if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable.”

An appeal was filed challenging the decision by Motor Accident Claims Tribunal.

It was submitted that the deceased was driving his car and when he reached Tehsil Aonla, the bus of U.P.S.R.T.C was being driven rashly and negligently by its driver dashed with the car which was being driven by the deceased.

His earning was Rs 95,960 per month and the legal heirs were dependent on him, therefore, they claimed a sum of Rs 1,80,00,000 with interest.

Negligence

The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

Negligence can be both intentional or accidental though it is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that either side is negligent.

Elaborating further, it was stated that if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence

A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place and that amount will be decided from the compensation payable to him if he is injured and to legal representatives, if he dies in the accident.

Court’s opinion | Rash and Negligent Driving

Bench on noting the fact that the bus which was a bigger vehicle had to be more cautious, the instantaneous death of the driver of the car depicted that the vehicle driven by the respondent was being driven in rash and negligent manner, but the driver of the car was also considered negligent.

Lastly, the Court held that if U.P.S.R.T.C does not make payment within 30 days then only it will be liable for interest.

In view of the above, appeal was partly allowed. [U.P.S.R.T.C v. Anamika Deo, First Appeal from Order No. 1039 of 2021, decided on 14-2-2022]


Advocates before the Court:

Counsel for Appellant: Dharmendra Dhar Dubey, Awadhesh Kumar Saxena

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

High Court stated that,

When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons, it is not case of “contributory” but it is a case of “composite negligence”.

Background

Appellant’s case was that the appellant injured (applicant) was proceeding as a pillion rider along with his brother on motorcycle. The motorcycle was hit by an offending truck which came in high speed and gave dash from behind. Due to the said incident, both the applicant and his brother sustained severe bodily injuries.

An FIR was registered under Sections 279, 337 and 338 of the Penal Code, 1860 against the driver of the offending truck. Due to the accidental injuries, the applicant lost his job as well as his earning capacity, hence he approached the Tribunal for grant of compensation in terms of Section 166 of the Motor Vehicles Act.

What was Tribunal’s decision?

Tribunal quantified compensation of Rs 8,84,520, however, recorded the finding that the accident occurred due to sole negligence of the motorcycle rider, i.e. applicant’s brother. Since there was no negligence on the part of the truck driver, the claim petition was dismissed.

Negligence

It was not in dispute that the appellant was pillion rider and therefore it was a case of composite negligence, in view of that even if there was slightest negligence on the part of truck driver, then the injured can recover compensation from the owner and insurer of the truck. Hence, it was necessary to dwell upon the question of negligence.

“… claim petition is not an adversarial adjudication between litigating parties but a statutory determination of compensation, after due enquiry, in accordance with the statute.” 

Tribunal’s conclusion was drawn solely on the ground that at the time of dash motorcycle was on the wrong side of the road i.e. to its right side.

Analysis and Discussion

In Court’s opinion, the Tribunals discarded spot panchanama which disclosed that the accident took place to the eastern side. Thus, it gave a complete different picture and location of the place of occurrence. The reason for discarding the same was that the rider could not have shown the place since he was admitted to the hospital.

Further, it was stated that there may have been the possibility of Vinod showing the place since there were no documents of him being an indoor patient. Besides that, the panchnama had a reference that there were bloodstains and the existence of the same supported the location of the occurrence.

High Court added that it was not clear as to in which direction the motorcycle was heading, hence the tribunal erred in solely relying said admission by overlooking spot panchanama.

Bench cited the Supreme Court decision in Bimla Devi v. Himachal Road Trans. Corpn., 2009 ACJ 1725 (SC), wherein it was ruled that the strict proof of an accident caused by a particular vehicle in a particular manner was not possible to be done by the claimants. They were merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be invoked in claim petitions.

Further, the Court remarked that,

“Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations which ordinarily by reason of conduct of human affairs would do or obliged to do.” 

Significantly, the Court added that, even if it was assumed that the motorcycle was to the wrong side of the road, still dash was given from behind which clearly demonstrated that the truck driver was very much negligent.

The present matter was a case of composite negligence. The negligence of truck driver may be to any extent, but it would certainly attract liability.

Bench further added that, since the dash was from behind, the doctrine of Res ipsa loquitur would apply against the truck driver.

Merely on stray admission applicant’s entire case dehors to police papers cannot be jettisoned.

The driver and owner have appeared and contested the claim but driver did not step into witness box, which is sufficient to draw adverse inference against them.

Hence, it was quite clear that the truck driver had also contributed in negligence and therefore the finding recorded by the Tribunal on the point of negligence was totally erroneous.

Composite Negligence

“…the accident was result of negligence on the part of both i.e. motorcycle rider and truck driver. Meaning thereby a case of composite negligence.”

In the case of composite negligence, the claimant has no choice to seek compensation from either of the wrongdoer.

Elaborating further, the Bench stated that, since the truck driver contributed in negligence i.e. he was also wrong doer, the applicant can very well claim entire compensation from the driver, owner and insurer of the offending truck.

The compensation assessed by the Tribunal was just and proper. Besides that claimant was entitled to interest @7% per annum, which would be in the tune of the prevailing rate of interest in the banking sector.

Therefore, the appeal was allowed. [Satling Gangadhar Bagal v. Abarao Dnyanoba Sanap, 2022 SCC OnLine Bom 426, decided on 24-2-2022]


Advocates before the Court:

Mr S.S. Dargad, Advocate for the appellant.

Mr A.V. Thombre h/f. Mr S.S. Thombre, Advocate for respondents 1 & 2.

Mr S.V. Kulkarni, Advocate for respondent 3.

Case BriefsHigh Courts

Rajasthan High Court: Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

The instant appeal under Section 173 of the Motor Vehicles Act, 1988, was filed by the wife, minor daughter and parents of Late Ramavatar @ Ramgopal, a victim of motor vehicle accident happened due to rash and negligent driving of the driver of the offending vehicle. The appellants filed MAC Case No.134/2011 before the Motor Accident Claims Tribunal, Bharatpur. By the impugned judgment and award the Tribunal awarded Rs.3, 21,600/- against claim of Rs.80, 35,000/-. Being dissatisfied with the calculation and quantum of compensation decided by the appellants, instant appeal was filed.

Counsel for the appellants Ms. Chelsi Gangwal contends that there was overwhelming unrebutted evidence of the wife of the deceased AW-1 Asha, the father of the deceased AW-2 Pradhan Singh and a businessman dealing with AC etc. who was examined as AW-3 Lalit Kumar that the deceased had monthly earning of Rs.12,000/-. However, the learned Tribunal took a pedantic approach of the matter that since no documentary proof of income of the deceased was produced, the notional income of Rs.3, 000/- per month was taken as multiplicand.

Counsel for respondent 3 put a defense that the offending vehicle was being used in violation of the terms and conditions of the policy. It was a case of contributory negligence as has been held by the Tribunal.

The Court observed that In the present case, there is no photographs of the site plan nor the author who had prepared the site plan Ex.-2 appeared before the Court. In my view, the Tribunal has committed error of appreciation of evidence and in fact, it is not a case of contributory negligence. Therefore, only for the reason that a self-earning person could not produce the document of his income, the deposition of the witnesses conversant with the income of the deceased should not have been ignored.

The Court relied on National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, and observed “Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree or proximity to the arithmetical precision on the basis of material brought on the record in an individual case. In a case of death, the legal heirs of the deceased cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation.

The Court thus held “Thus, under the conventional head, the appellants would be entitled for Rs.1,50,000/-, the total payable compensation comes to Rs.26,71,600/- (Rupees Twenty Six lacs Seventy One Thousand and Six Hundred) The aforesaid amount minus already paid would be payable by the Insurer within three months to the claimants along with interest of 9% per annum, failing which the aforesaid interest would be payable till the realization of the whole due amount. The 1/3rd share of the minor daughter shall be deposited in some Fixed Deposit Scheme and shall be spent for education and betterment of the minor as and when occasion arises on the order of the Court only.”[Asha v. Naresh Kumar, 2022 SCC OnLine Raj 262, decided on 03-02-2022]


Appearances:

For Appellant(s) : Ms. Chelsi Gangwal for Mr. Prateek Sharma

For Respondent(s) : Mr. Ritesh Jain


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While hearing the appeal filed by Maharashtra SRTC, the Division Bench comprising of M. R. Shah* and B. V. Nagarathna, JJ., held that punishment of dismissal from service per se cannot be said to be an unfair labour practice for being disproportionate to the misconduct proved.

Background

On 23-10-1992 when the respondent, a bus driver employed by the MSRTC, was driving a bus, he met with an accident with a jeep coming from the opposite direction. The allegation against the respondent-driver was that instead of taking the bus to the left side, he took the bus to the extreme right and as a result, the jeep and the bus collided. The accident resulted in death of four passengers on the spot and six passengers were seriously injured. The impact of the collision was so high that the jeep was pushed back by about 25 feet. The driver of the jeep also sustained injuries. The respondent was subjected to disciplinary enquiry, and was consequently dismissed from service. A criminal case was also lodged against the driver under Section 279 of IPC for negligent and rash driving. However, he came to be acquitted.

Findings of the Labour Court and Industrial Tribunal

The Labour Court upheld the order of dismissal. In a revision application the Industrial Tribunal considering the acquittal of the respondent in criminal proceedings and observing that the drivers of both the vehicles were negligent (contributory negligence), the Industrial Tribunal exercised powers under item 1(g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; and held that the order of dismissal was disproportionate to the misconduct proved. Hence, the Tribunal ordered reinstatement of the respondent without back wages but with continuity of service.

Dismissal by the High Court

The order of the Tribunal was challenged before the High Court by the appellant-MSRTC. The High Court, by the impugned order and judgment had only dismissed the appeal but also directed the appellant to pay to the respondent back wages with effect from 01-11-2003 to 31-05-2018 i.e. which was the date of his superannuation. The High Court also directed that the respondent should also be entitled to retiral benefits on the basis of continuity of service.

Factual Analysis

Noticing that while acquitting the accused–respondent the Criminal Court observed that the prosecution failed to prove that the incident occurred due to rash and negligent driving of the accused-respondent only and none else, and acquitted the respondent by classifying the case as one of a contributory negligence, the Bench stated that even if it was assumed that even driver of the jeep was also negligent, that did not that the respondent was not negligent at all. Hence, it could not absolve him of the misconduct.

Further, the Criminal Court acquitted the respondent on the hostility of the witnesses; the evidence led by the interested witnesses; lacuna in examination of the investigating officer; panch for the spot panchnama of the incident, etc. On the contrary in the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. Therefore, the Bench said,

“An acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives.”

Therefore, the Bench concluded that the Industrial Court had erred in giving much stress on the acquittal of the respondent by the criminal court.

Whether punishment of dismissal can be said to be an unfair labour practice for being disproportionate to the misconduct proved?

The Bench observed that the Labour Court did not interfere with the order of dismissal by giving cogent reasons and after re-appreciating the entire evidence on record including the order of acquittal passed by the criminal court. However, the Industrial Tribunal interfered with the order of dismissal solely on the ground that punishment of dismissal was disproportionate to the misconduct proved and the same can be said to be to be unfair labour practice as per item 1(g) of Schedule IV of the MRTU & PULP Act, 1971. The Bench stated,

Clause No. 1(g) can only be invoked in a case where it is found that dismissal of an employee is for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.

However, as per the appellant, the respondent was in service for three years and during three years’ service tenure he was punished four times, therefore, the Bench opined that it could not be said that the order of dismissal was without having any regard to the past record of the service of the respondent. Consequently, the Industrial Court wrongly invoked clause 1(g) of Schedule IV of the MRTU & PULP Act, 1971 as it could not be said that the dismissal of the respondent was for misconduct of a minor or technical character, without having any regard to the nature of the misconduct.

Conclusion

In the backdrop of above, the Bench concluded that the Industrial Court committed a grave error and had exceeded in its jurisdiction while interfering with the order of dismissal passed by the disciplinary authority. Similarly, the impugned judgment of the High Court directing the appellant to pay wages to the respondent also could not have been passed in a petition filed by the appellant. The Bench explained, it was not a petition filed by the workman and the relief granted was beyond the scope and ambit of the controversy before the High Court.

Accordingly, the impugned order and judgment was quashed and set aside and the judgment and Award of the Labour Court was restored. The order of dismissal passed by the disciplinary authority was upheld.

[Maharashtra SRTC v. Dilip Uttam Jayabhay, 2022 SCC OnLine SC 1, decided on 03-01-2022]


*Judgment by: Justice M. R. Shah


Appearance by:

For Maharashtra SRTC: Mayuri Raghuvanshi, Advocate

For the Respondent: Nishanth Patil, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.

Present appeal had been preferred by the claimants-appellants against the decision of Presiding Officer, Motor Accident Claims Tribunal, Kanpur whereby the Tribunal awarded a sum of Rs 1,80, 000 as compensation to the claimants with interest at the rate of 7.5% per annum.

The appeal was preferred for the purpose of enhancement of quantum.

By the present claimant’s appeal, appellant claimed enhancement of award for the death of a child who was 7 years old at the time of his death.

Appellant’s counsel submitted that the deceased was a brilliant student and he had very bright future, but the said aspect was not considered by the Tribunal. Further, it was added that the notional income of the deceased was taken Rs 15,000 per annum by the Tribunal and held that the contribution of the deceased towards his family was only assumed as 1/2 of his income and in this way the Tribunal has awarded only 1/2 of his income as compensation, which was not just and proper.

Supreme Court decided the controversy and settled the law regarding the death of a child in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060, wherein it was stated that in spite of repeated directions, Scheduled-II of Motor Vehicles Act, 1988 was not yet amended. Therefore, fixing notional income of Rs 15,000 per annum for non-earning members is not just and reasonable.

Hence, the Supreme Court took the notional income of the deceased at Rs 25,000 per annum, hence Court is opined that notional income of the deceased must be assumed Rs 25,000 as he was a non-earning member.

Court further expressed that, when the notional income is multiplied with applicable multiplier ‘15’ as prescribed in Scheduled-II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs 3,75,000/- towards loss of dependency.

Therefore, appellants 1 and 2 were entitled to the following amounts towards compensation:

(i) Loss of Dependency: 25,000/- X 15 = Rs.3,75,000/-

(ii) Filial consortium: 40,000/- X 2 = Rs.80,000/-

(iii) Funeral expenses: Rs.15,000/-

(iv) Total compensation: Rs.4,70,000/-

The Bench also added that in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260, the appellants 1 and 2 shall be entitled to the rate of interest as 7.5% per annum from the date of filing the claim petition.

Lastly, the Court concluded by stating that the appeal was partly allowed in view of the above discussion. [Roop Lal v. Suresh Kumar Yadav, 2022 SCC OnLine All 25, decided on 4-1-2022]


Advocates before the Court:

Counsel for Appellant:- Mohd. Naushad Siddiqui

Counsel for Respondent:- Vipul Kumar, Shreesh Srivastava

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., Whether the Insurance Company can be absolved of its liability to pay compensation under the Employees Compensation Act, 1923, if the employee who has succumbed to an accident which took place during the course of employment, is a minor?

Appellants filed a claim based on the premise that the deceased was aged 18 at the time of the accident and was receiving wages of Rs 5,500 per month and compensation of Rs 6,22,545 was assessed.

The insurer opposed the above-said claim before the Commissioner/Labour Court, and it was disputed that the accident suffered by the deceased arose out of or in the course of employment with the OP.

Further, it was denied that there was any nexus between the alleged injury and the alleged accident and since the police papers revealed the deceased’s age was 15 years, it was stated that the claim was not maintainable under the Workmen’s Compensation Act, 1923, hence the same shall be dismissed.

Analysis, Law and Decision

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

There is no age limit for a person to be employed as an employee under the Workmen’s Compensation Act, though Article of the Constitution of India, employment of child labour before 14 years in any factory or mine or any hazardous employment, there are enactments in the form of Child & Adolescent Labour (Prohibition & Regulation Act), 1986 where engaging services of children below 14, in any hazardous avocation, is an offence.

Elaborating further, it was stated that Workmen’s Compensation Act is a beneficial piece of legislation and if a person engaged by an employer, as an employee is a minor and his appointment, though is prohibited by any law in existence, meet with an accident and sustain a disability which can be a total or partial disability, the moot question is:

Whether an employee should be denied the compensation merely on the ground that the employer had engaged him by contravening the law and he shall be kept out of the benefits which would have been otherwise available to him on account of an accident which he has suffered, which occurred in his workplace and out of the course of his employment or whether his family can be denied compensation on his death?

Bench expressed that the impugned decision took a harsh stand and refused to fasten liability of compensation on the Insurance Company by recording that the deceased was a minor and insurance company was not liable to pay compensation on the said ground.

The insurance policy in the present matter clearly covered two persons and the liability covered a person employed by the insured for operation and maintenance or loading/unloading which covered a cleaner.

Labour Court’s approach defeated the very spirit and rationale behind the Employees Compensation Act and the claimants who were the parents of the deceased were held entitled to recover compensation only from the employer with very negligible chance of recovering the compensation.

High Court disapproved the above approach of the labour court and opined that the Insurance Company cannot be absolved of its liability to pay compensation to the claimants, the dependents of the deceased. Therefore, the impugned judgment of the Commissioner was modified to the limited extent of fixing the liability jointly and severally upon the employer and the Insurance Company.

First Appeal No. 246 of 2015

In this matter, Insurance Company was aggrieved by the award of compensation to the parents of the deceased, who succumbed to the injuries in the accident.

Labour Court had directed the employer and the Insurance company jointly and severally liable to pay compensation.

Claimant 1 had set up a claim under the Workmen’s Compensation Act by filing the application claiming that his son was employed by the OP on his Motor Tempo as loader and the said tempo met with an accident due to which the son died.

High Court stated that when the written statement on oath before the Commissioner and the certificate issued by the employer is juxtaposed against his statement recorded by the police during the course of investigation, the statement recorded under oath, admitting that deceased Deepak was his employee, assumed importance.

Bench expressed that in view of the inconsistency in the statement given to the police by the employer, denying any employer-employee relationship on one hand and the statement on oath filed in the form of written statement before the Commissioner, the Commissioner has rightly given weightage to the statement on oath and accepted the employer-employee relationship.

In view of the above, Court found no reason to interfere with finding of the Commissioner. [Mohammed Ali Abdul Samad Khan v. Dawood Mohd. Khati, 2021 SCC OnLine Bom 6670, decided on 10-12-2021]


Advocates before the Court:

Mr. Amol Gatne i/b Ms. Swati Mehta for the appellants in First Appeal No.169 of 2014 and for the respondents in First Appeal No.246 of 2015.

Mr. D.R. Mahadik for the appellant in FA No.246/2015 and for respondent in FA No.169/2014.

Case BriefsDistrict Court

Dwarka Courts, New Delhi: Sushil Anuj Tyagi, ASJ while addressing a case of drink and drive, expressed that,

“There has to be a zero-tolerance for drunken driving and such cases should be dealt with stern hands for flashing proper message in the society.”

The instant appeal was filed under Section 374 of Code Criminal Procedure against the decision of M.M. Dwarka Courts whereby the appellant was convicted and sentenced to undergo simple imprisonment for 4 days and fine under Sections 185 and 194B of the M.V. Act in default of payment of fine the appellant was further sentenced to imprisonment for 7 days.

Factual Background

Challan for the offence under Sections 185 and 194B MV Act was filed against the accused/appellant on the allegations that he was found driving a vehicle in drunken condition and he was not using his seat belt.

MM had taken cognizance of the above-stated. Appellant pleaded guilty.

The accused assailed the impugned order of the trial court on the grounds that the principles of natural justice were not followed, and that the appellant was not medically examined properly and that the report filed by the traffic police before the trial court was forged.

Further, the appellant was the victim of improper investigation and that the order passed by the trial court was hasty. Adding to this he stated that he was not a previous convict and had clean past antecedents.

It was also submitted that the appellant was running his business of Tours & Travels and he was the sole bread earner of his family which consists of his wife, minor daughter and old aged parents.

Analysis, Law and Decision

The Court stated that since the appellant had voluntarily pleaded guilty to the offences challaned against him, as per Section 375 CrPC, the appellant had no right to appeal as he has been convicted on his voluntary plea of guilt. Hence this Court found no illegality, infirmity or error in the impugned order, regarding the conviction.

Quantum of Sentence

Bench stated that it is true that drunkard driver is a menace on the overcrowded roads of Delhi.

The driver of motor vehicles is expected to be alert to the emergent contingencies which may arise on the road and he cannot be expected to lower his guard of reflexes. The consumption of alcohol impacts the senses of a person which results in delayed responses and reflexes which results in serious and fatal accident.

 “…drunken driver is injurious to his own life as well as to the life of innocent road users.’’

Analyzing further, Court stated that this Court cannot be oblivious to the fact that the appellant was the first-time offender and was not a previous convict, infact he had a clean past and was the sole earner of his family, he even expressed remorse for his conduct and undertook that he won’t repeat such act in future.

While considering the aggravating and mitigating circumstances, Court opined that the appellant deserved one chance for improving himself and hence took a lenient view by modifying the sentence of imprisonment Till the Rising of the Court.

In view of the above discussion, the appeal was disposed of. [Ishan Gaur v. State, CA No. 136 of 2021, decoded on 13-12-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.K. Jayasankaran Nambiar and Mohammed Nias C.P, JJ., directed the government of Kerala to consider the period spent on treatment and hospitalization due to road accident as Special Disability Leave and grant all the benefits related to it.

The writ petitioner, a School Teacher in the G V Higher Secondary School, had met with an accident while she was riding her scooter on her way to school from her residence. Pursuant to which she sustained injuries and was hospitalised and was under treatment during the period from 17-08-2012 to 16-12-2012.

The petitioner claimed the benefit of special disability leave in terms of Rules 97 and 98 of Part I of the Kerala Service Rules [KSR], but her claim was rejected by the Regional Deputy Director, Higher Secondary Education on the ground that that the injury suffered by the petitioner could not be seen as either caused in, or in consequence of the due performance of her official duties or in consequence of her official position. It was essentially stated that the travel from her residence to the school could not be seen as a travel in connection with her employment. The petitioner, therefore, preferred an appeal before the Government, which too was rejected by the same ground.

The petitioner then impugned the said Government Order before this Court, when the Single Judge quashed the impugned order and directed the authority competent to take up the application of the petitioner again and pass a fresh order thereon. Consequently, the respondents once again rejected the claim of the petitioner stating that the accident that occurred in the course of travel of the petitioner from her residence to the school could not be considered as one that occurred during the performance of her official duties.

The Bench observed that after considering the provisions of Rules 97 and 98 of Part I KSR, the Single Judge had found that the injury suffered by the petitioner while she was admittedly, on her way to work had to be seen as an injury suffered consequent on her employment. Accordingly, the Single Judge had directed the respondents to sanction the special disability leave applied for by the petitioner.

Further, the Bench rejected the grounds relied by the respondents by opining that a mere perusal of the provisions of Part I KSR which deal with various kinds of leave would reveal the underlying scheme therein which is that the sanction of various kinds of leave are contemplated only once it is established that the employee-employer relationship continues to exist without interruption. Since, as per the specified provisions the difference in the kinds of leave sanctioned was only in respect of the periods for which an employee could remain absent from work and the monetary benefits, if any, that will be paid to the employee during the said period.

Thus, the Bench stated that when the provisions of Rules 97 and 98 of Part I KSR that prescribe the conditions for the grant of leave are interpreted, the interpretation to be placed must be one that recognizes the above scheme and its intent, and furthers such intent.

In the light of the above, the Bench held that the phrase “caused in, or in consequence of due performance of his official duties or in consequence of his official position”, which appear in both the Rules aforementioned, cannot be construed in a narrow and pedantic fashion so as to exclude a person who was admittedly an employee, who was travelling from her residence to the place of work at the time when the accident took place. Accordingly, the Bench refused to interfere with the liberal view taken by the Single Judge and the appeal was dismissed. [State of Kerala v. Shylaja K. Unnithan, WA No. 1409 of 2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the State: A.J.Varghese, Sr. Government Pleader

For the Appellant: K.Sasikumar, P.S.Raghukumar, S.Aravind and K.Janardhana Shenoy

Case BriefsHigh Courts

Bombay High Court: Noting that the Motor Accident Claims Tribunal Member did not properly determine just and proper compensation, V.M. Deshpande, J., while partly allowing the appeal enhanced compensation.

Instant appeal was filed by the claimants for enhancement of compensation.

Factual Matrix

Appellants were the widow, sons and daughters of the deceased. Deceased when proceeding to his house on foot after closing his shop was crushed to death by the offending vehicle. The offence was registered against the driver of the offending vehicle.

Further, the appellants had approached the Motor Accident Claims Tribunal by filing a petition under Section 166 of the Motor Vehicles Act. In the said petition, it was averred by the claimants that when the deceased met an untimely death, he was 40 years old and a self-employed person.

Claimants added that the monthly income of the deceased was Rs 10,000 and the aggregate compensation claimed was Rs 5,00,000 with interest at 12% pa from the date of the accident.

MACT passed the judgment and award holding that the claimants were entitled to total compensation of Rs 1,89,500/- inclusive of no-fault liability amount of Rs 50,000/- along with interest at the rate of 7.5% per annum from the date of filing of petition.

On being dissatisfied with the compensation amount that was awarded, present appeal was filed.

Issue

According to the counsel for the appellant, the Tribunal committed an error in determining the monthly income of the deceased as Rs 15000/-. She submitted that in any case, the income of the deceased was not less than Rs 10,000/- per month. She also submitted that the judgment of tribunal cannot stand to the scrutiny of law inasmuch as nothing is granted in favour of the claimants under the head of future prospects. Along with this, Tribunal had wrongly deducted 1/3rd amount towards personal expenses.

Did member of the MACT grant just and adequate compensation to the claimants?

Analysis, Law and Decision

In Court’s opinion, Member of the Tribunal had rightly reached the conclusion that at the time of the death, the age of the deceased was 45 years.

Adding to the above analysis, Court stated that there was no documentary evidence that could throw light on the daily income of the deceased.  However, from the evidence of the widow, it was clear that the deceased was engaged in repairing tubes and tyres of various vehicles and not the bicycles. In that view of the matter, the Judge had determined the daily income of the deceased on very lower side.

Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.

Moving further, High Court elaborated stating that in absence of any documentary evidence and keeping aside the exaggeration in respect of earning per month income of the deceased, looking to the nature of self-employment of the deceased, the Court reached the conclusion that monthly income of deceased was Rs 5,000.

Claimants were entitled to 25% towards future prospects.

In Court’s opinion, the Tribunal committed an error in deducting 1/3rd income. Seven persons were dependent on the deceased. Therefore, a proper deduction would be 1/5th.

The inadequate amount was granted in favour of the claimants on account of loss of consortium for which they were entitled at the rate of Rs 44,000/- per dependent in view of the law laid down in Magma General Insurance Co. Ltd v. Nanu Ram, (2018) 18 SCC 130. Similarly, less compensation was granted to the claimants in respect of the loss of estate and future expenses which appellants will be entitled. Therefore, the claimants were surely entitled to enhancement.[Sahana Khatoon v. New India Assurance Co. Ltd., 2021 SCC OnLine Bom 3695, decided on 28-10-2021]


Advocates before the Court:

Ms Mitisha Kotecha, Advocate for appellants.

Mr M. B. Joshi, Advocate for respondent 1.

None for respondents. 2 and 3, though served.

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

Factual Backdrop

Petitioner’s son (Bharat) who was 28 years of age was the victim of an accident at the age of about 21 years which had left him 100% disabled. Instant petition was filed by petitioner’s father since petitioner was stated to be virtually bed ridden and not in a position to file to pursue his claim against the respondents.

Petitioner had made claims against the respondents BSES Rajdhani Power Limited and Bryn Construction Company.

Further, it was submitted that petitioner had suffered an accident due to certain work performed by Bryn for BRPL, which led to the filing of the present petition.

Cause of Permanent Disability

 Bharat, who was then about 21 years of age, while working as an electrician with Bryn, was tasked with rectifying a fault in an electricity pole that was causing fluctuation in the electricity supply at a farmhouse and suffered a fall while performing the task since the electricity pole that he had climbed on, snapped and fell.

Bharat’s dismal physical state apart, it was also evident to this court that Bharat was a psychological wreck, not least because in the course of interaction with this court, he broke- down on several occasions.

Depression and Anxiety

 As per medical opinion in regard to Bharat’s psychological state, his level of mental depression and anxiety fall in the “abnormal range”.

Questions for Consideration

  • Given his medical condition, what course of action should be adopted for Bharat’s further rehabilitation, continuing care and welfare?
  • Is Bharat entitled to receive any monetary compensation for the injury suffered by him as a result of the accident; if so, from which of the respondent or respondents?
  • If the answer to (ii) above is in the affirmative, in what manner should the compensation be calculated?

Analysis, Law and Decision

While analyzing and penning down this interesting decision, Court addressed a very fundamental issue, whether Bharat was an ‘employee’ of Bryn or was engaged by Bryn to perform the task that led to the accident.

It was noted that Bryn did not expressly admit that Bharat was their employee; nor that he had been engaged by them to perform the task in question.

However, there was also no denial of any kind, whether express or implied, that Bharat was working for Bryn. The thrust of Bryn’s counter-affidavit is that BRPL is responsible to compensate Bharat for the injury, since at the relevant time Bharat was working under BRPL’s supervision and performing BRPL’s tasks.

Court took note of the fact that while BRPL and Bryn both contended that all requisite safety equipment and precaution were made available by them, neither BRPL nor Bryn explained why such equipment, if available, failed to protect Bharat from the serious injury he suffered. 

Opinion of the Court

Bench opined that Bharat was working for Bryn and was tasked with certain maintenance work to be performed on an electricity pole owned by BRPL; which pole, it turned-out, was not strong enough to take Bharat’s weight or was not rooted securely in the ground, and thereby fell, as a result of which Bharat sustained serious injuries. It is also evident that Bharat was not provided any safety gear before he was directed to climb the pole to undertake the task.

 Principle of res ipsa loquitur

High Court added to its analysis that the instant matter would be squarely covered by the principle of res ipsa loquitur, whereby no detailed evidence, much less a trial, is required to establish ex-facie negligence on the part of BRPL and Bryn.

The said maxim was lucidly explained in the leading Supreme Court decision of Shyam Sundar v. State of Rajasthan, (1974) 1 SCC 690,

 The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. 

Elaborating further, the Court stated that the accident could not have occurred had Bryn and/or BRPL not been negligent in taking reasonable precautions to avoid it; which gave rise to their strict liability for the injuries sustained by Bharat.

The undated declaration with no proof of payment made to Bharat, though the declaration signed by Bryn accepting payment of a small sum of compensation in full and final settlement from Bryn and absolving them of any further liability.

In Court’s view, the above-mentioned declaration, deserved no credence or value since it smacked of being a document procured by Bryn precisely for the purpose of absolving itself of any further claim or liability vis-à-vis Bharat, by suborning a hapless and resourceless victim with a small amount of monetary bait, knowing full well that their actual liability would be much more.

Bench further expressed that merely because there were more than one respondent attempting to foist blame or liability on each other, that would not defeat the just claim of the petitioner’s son.

Hence, both respondents would be held jointly and severally liable, giving them liberty to recover the whole or any part of compensation paid, from one another.

High Court’s Inference

  • Without delving into the technical semantics of whether Bharat was an ‘employee’ of Bryn within the meaning of the Employee’s Compensation Act, suffice it to say that Bharat was performing the task in question for Bryn and at their instance
  • Bharat is unable to perform even the most basic, personal, daily chores himself and is all but 100% dependent on others; and as a result, though Bharat is living, he is barely alive;
  • On the principle of ‘strict liability’, both Bryn and BRPL are, jointly and severally, liable to compensate Bharat for putting him in his current state;
  • Section 4(2)(a) of the Employee’s Compensation Act mandates that apart from the liability to pay compensation, the employer is also under obligation to reimburse all actual medical expenses incurred by an employee for treatment of injuries. Furthermore, section 4-A provides that failure of an employer to pay compensation in a timely manner would attract payment of both interest and penalty for the delayed payment of compensation;
  • Reading the Bryn-BRPL Agreement and section 12 of the Employee’s Compensation Act together, it is seen that section 12 also fixes liability upon the “principal” for payment of compensation to an injured employee, with a right in the principal to recover the same from the contractor, if work was being carried-out by a contractor. In the present case the principal would therefore be BRPL and the contractor would be Bryn
  • Allowing the petition, Court awarded Bharat relief in two broad categories:
  1. Monetary Relief
  2. Non-Monetary Relief by way of directions.

Details of the relief can be referred to in the Judgment.

In view of the above discussion, petition was disposed of. [Kehar Sigh v. GNCTD, 2021 SCC OnLine Del 4198, decided on 25-08-2021]


Advocates before the Court:

For the Petitioner: Prabhsahay Kaur, Amicus Curiae.

Saraswati Thakur, Advocate.

For the Respondents: Satyakam, Additional Standing Counsel for GNCTD/R1

Ravi Gupta, Senior Counsel with Sunil Fernandes, Standing Counsel for BRPL-RPL with Anju Thomas, Shubham Sharma and Sachin Jain, Advocates for R2.

A.K. Sharma, Advocate for R3. Saurabh Sharma, Advocate for Indian Spinal Injuries Centre.

Sayli Petiwale, Advocate for Anil Mittal, Advocate for State of U.P.

Case BriefsSupreme Court

Supreme Court: In a case dating back to the year 1995 where a bus driver had caused an accident, thereby injuring a driver of a car, the 3-judge bench of Ashok Bhushan, Vineet Saran and MR Shah, JJ has upheld the conviction of the bus driver under Sections 279 and 338 of IPC but has held that sending the accused to jail after 26 years would be harsh.

The incident took place on 16.02.1995 i.e. more than 26 years ago and the appellant was throughout on the bail. The Trial Court recorded the conviction under Section 279, 338 and awarded sentence of imprisonment of six months and further sentenced to pay a fine of Rs.500/- under Section 337.

However, the Supreme Court substituted the sentence by fine of Rs. 1000/- each.

“The conviction of appellant is affirmed, however, looking to the facts and circumstances of the present case specially the fact that 26 years have elapsed from the incident, we are inclined to substitute the sentence of six months imprisonment under Section 279 and 338 into fine. Six months sentence under Section 279 and 338 IPC are substituted by fine of Rs.1000/- each whereas sentence of fine under Section 337 IPC is maintained.”

[Surendran v. Sub-Inspector of Police, 2021 SCC OnLine SC 445, decided on 30.06.2021]


*Judgment by: Justice Ashok Bhushan 

Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Parthivjyoti Saikia, J., addressed the instant appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 30-08-2016 which had been filed for enhancement of award.

The facts of the case were such that on 07-07-2013, one Bimal Kr. Saikia (the deceased) was waiting for a bus on NH-37. He was standing left side of the road in order to take the bus ride back home when the vehicle bearing registration No. AS-01/K-8766 knocked down the deceased. The deceased was immediately shifted to Civil Hospital at Nagaon but he succumbed to his injury there. It was alleged that the accident took place because of the rash and negligent driving of the aforesaid vehicle.

On the basis of the Income Tax return for the financial year 2013-14, the Tribunal had assessed the monthly income of the deceased as Rs 12,619 only and the age of the deceased had been stated as 40 years. The applicant contended that the future prospect of the deceased should have been held at 40% only by the Tribunal and not 50%. Regarding the consortium, funeral expenses, loss of care and guidance for children, the appellant had relied on the decision of Supreme Court in National Insurance Company Limited v. Praynay Sethi, (2017) 16 SCC 680, the appellant submitted that on the aforesaid heads the claimant was entitled to Rs 70,000 only.

The Bench opined that the monthly income of the deceased had been rightly assessed at Rs 12,619. The Court reiterated,

“Being beneficial legislation, in a claim case under the Motor Vehicle Act strict proof of Income Tax Return may not be mandatory in all circumstances.

Holding that the Tribunal had committed an error because, the deceased being below 40 years of age, only 40% should have been added as future prospect. Regarding compensation under the loss of consortium head, financial expenses head and loss of care and guidance for children head, the Bench held that all together for these three heads the claimants were entitled to Rs 70,000 only.

Hence, the Court held that the claimant was entitled to Rs 21,90,040 only. The appeal was allowed and the appellant was directed to pay Rs 21,90,04 only to the claimant.[Oriental Insurance Co. Ltd. v. Nitanjali Devi Saikia, 2021 SCC OnLine Gau 648, decided on 18-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. R D Mozumdar

For the Respondent: Adv. A J Sarma

Case BriefsSupreme Court

Supreme Court: Appalled with the arrest of Anuj Jain, the Interim Resolution Professional of the company managing the Yamuna Expressway, in connection with an accident that happened on the expressway that killed seven members of a family, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed his immediate release and has also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against Jain.

Jain was arrested in connection with an FIR that was filed after seven members of a family had died in an accident that happened on the highway. The victims were travelling towards Delhi when an overspeeding oil tanker jumped the divider and rammed into the victims’ vehicle The collision led to the spilling of oil from the tanker, resulting in a massive fire that engulfed both the vehicles.[1]

Shocked to the see the extreme step taken by UP Police to arrest the Interim Resolution Professional, Anuj Jain, working in that capacity pursuant to the order passed by the Court and entrusted with the functioning of the Company, the Court said,

“It is seen that the police official dealing with the case is not familiar with the provision of privilege of interim resolution appointed by the Court, in terms of Section 233 of the Insolvency and Bankruptcy Code.”

State of Uttar Pradesh had submitted before the Court that the Investigating Officer, Bijendra Singh, was of the view that the applicant may leave India at any time to avoid the prosecution and for securing his presence thought it necessary to arrest him from Mumbai.

Taking note of this submission, the Court said that it

“… will examine this aspect of the matter elaborately at appropriate time by treating this application as substantive writ petition filed by the applicant under Article 32 of the Constitution of India and to be numbered accordingly.”

In the meantime, the Court directed the release of Jain and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court asked the Registrar(Judl.) to personally intimate the office of the concerned Judge and Police Station Beta-II, District Greater Noida, Uttar Pradesh on telephone “to ensure immediate release of the applicant, Mr. Anuj Jain, without imposing any conditions”.

[Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160, order dated 02.03.2021]


Appearances before the Court by:

For applicant: Senior Advocates Parag Tripathi and Sidharth Luthra

For State: Senior Advocate R.K. Raizada

[1] Yamuna Expressway management firm’s officer held after FIR following fatal accident by Abhishek Anand, India Today, Last Updated: March 2, 2021 13:06 IST