Case BriefsHigh Courts

Orissa High Court: K. R Mohapatra J. allowed the appeals and directed to disburse the awarded amount by liquidating the fixed deposits, if any, to the claimants on proper identification, as expeditiously as possible.

 The facts of the case are such that these appeals are filed by the claimants under Section 23 of the Railway Claims Tribunal Act, 1987 (for short ‘the Act, 1987’). Being aggrieved by the judgments and awards passed by the Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar (for short ‘Tribunal’) assailing the mode of payment of compensation amount to the respective claimants therein. In all these appeals, the Claimants- Appellants are able bodied adults and have no disability. It was stated in the petition that Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2020 (for short ‘Amendment Rules’) being a subordinate legislation cannot be made applicable retrospectively and thus, mode of payment provided in Rule 5 of the said Rules is not applicable to the cases at hand.

Counsel for the appellant Ms. Deepali Mahapatra submitted that even if it is assumed that the rule has a retrospective application in view of sub-rule (2) of Rule 1 of the Amendment Rules, the applicability of Rule 5 being directory in nature, learned Tribunal should not have directed to deposit a major portion of the compensation amount in term deposits instead of releasing it in favour of the Claimants without recording reasons in support thereof. She further submitted that Rules have been promulgated keeping in mind the illiteracy and other disabling factors of the claimants impairing the judicious use of compensation. Thus, Tribunal has committed an error of law in directing to deposit a major portion of the awarded amount to be kept in fixed deposit.

Counsel for the respondents submitted that the Central Government in exercise of power under Section 129 of the Railways Act, 1989 amended the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 and framed the Amendment Rules. The Railway Claims Tribunal Annuity Deposit (RCTAD) Scheme in the matter of release of compensation amount in conformity with Rules 5.1 and 5.2 of the Amendment Rules was also amended. According to Rule 1(2) of the Amendment Rules the said Rules deemed to have come into force with effect from 1st January, 2020. As such, the Amendment Rules has application to the awards passed on or after 1st January, 2020. Nothing in the said Rules limits the power of learned Tribunal to make modification of the mode of disbursal of the awarded amount for the reasons to be recorded in writing. Thus, the Claimants-Appellants are at liberty to move learned Tribunal for modification of the mode of disbursing of the awarded amount.

The Court reiled on judgment Geeta Devi v Union of India, 2019 SCC OnLine Del 8919 wherein it was observed that

“5. As Regards Amendment to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

5.1. Many of the claimants are drawn from rural areas with low levels of literacy and lower levels of making appropriate decision for the use of amounts guaranteed under the awards. There are several instances of their exploitation by middlemen and touts operating in the field. The scope for such exploitation is itself one of the incentives for fomenting bogus claims, fabricated documents and duplicate claims in different Benches of the Tribunal for the same cause of action. The availability of bulk funds in the name of an ill-informed claimant is also a cause for exploitation. A scheme for protection of the amount due to such a claimant is the need of the hour. Earlier, this Court has involved 21 Nationalized Banks in dialogue to evolve a scheme of annuities for disbursement of claims.

The Court observed that Conspectus of Rule 5.1 and Rule 5.2 of the Amendment Rules makes it clear that the Tribunal has the discretion to pass suitable orders for disbursal of the awarded amount either in terms of the annuities, fixed deposits or other suitable mode in order to subserve judicious utilization of the awarded amount. When the discretion is conferred on the Tribunal to determine the mode of payment of the awarded amount as per Rule 5.1 of the Amendment Rules, Tribunal has to exercise the same judiciously and see that withholding disbursal of any amount does not cause any injustice to the claimant. Thus, the Tribunal has to pass a speaking order specifying the reasons for disbursal of the awarded amount in terms of annuities, fixed deposits or by any other mode to subserve the justice.

The Court held “In the cases at hand, there being no material on record to come to a conclusion that requirements of Rule 5.1, Rule 5.2 or Rule 5.4 are satisfied, I am of the considered view that learned Tribunal has committed an error of law in directing for deposit of a major portion of the awarded amount to be kept in fixed deposits.”[Kabi Pradhan v. Union of India, FAO Nos. 262 of 2020, decided on 09-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For Appellants: Miss Deepali Mahapatra

For Respondents: Mr. Dhanoj Kumar Sahoo

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Expressing that “Women are emotionally attached to their hair” Justice R.K. Agarwal (President) and S.M. Kantikar (Member) granted Rs 2 crores compensation to the women who received haircut not as per her instructions and also was subjected to medical negligence due to hair treatment given by Salon at ITC Maurya.

Read the below facts to know this very interesting decision by NCDRC.

Instant complaint was filed under Section 12 read with Section 21 of the Consumer Protection Act alleging deficiency in service on the part of OPs i.e. Chairman ITC Company Ltd. and ITC Ltd. in cutting and treatment of her hair at the Salon of hotel ITC Maurya and medical negligence in hair treatment.

Factual Matrix

Complainant, a week before her interview visited the salon of Hotel ITC Maurya for hairstyling to have a clean and groomed appearance before the interview panel.

According to the complainant, she had specifically instructed the hairdresser for long flicks/layers covering her face in the front and at back and 4-inch straight hair trim from the bottom.

Further, it was submitted that complainant was wearing high powered spectacles and was requested by the hairdresser to keep her head constantly down, she was not able to see herself clearly in the mirror. She further averred that it was a simple haircut but when the hairdresser took more than an hour to do the hairstyling, she questioned about more time and replied by the hairdresser that she was giving her a “London Haircut”. However, to the utter shock and surprise of the Complainant, the hairdresser, Christine chopped of her entire hair leaving only 4 inches from the top and barely touching her shoulders for which she was not instructed by her. She complained about hairdresser to the Manager of the Salon, and she was not given any bill for hairstyling though generally she was earlier being charged heavily. It is stated that because of the hair cutting the Complainant was not looking pretty and she stopped leading her normal busy life.

As no action was taken against the hairdresser, complainant called the General Manager, who misbehaved with her and stated that she was free to take any action against the salon.

Later complainant got to know that her hair were sold by the Salon. She was persuaded by the Salon to get extensions free of cost to which she agreed and later she was also given some hair treatment due to which her scalp got completely damaged, and she faced irritation in the scalp.

Complainant also asserted that the hairdresser scratched and cut her entire scalp with his nails on the pretext that he was doing this exercise to open the hair cuticles. But, when he put the ream which was laden with ammonia, complainant’s scalp got burnt.

On seeking assistance from the hotel staff, complainant stated that they were abusive, rude and disrespectful.

In view of the above background, complainant sought an apology from ITC Management as well as compensation of Rs 3 crores for harassment, humiliation and mental trauma.

Analysis, Law and Decision

Commission noted that OP 2 had admitted the fault on their part by offering the free hair treatment.

Certificate issued by Dr Ranjit Kumar Dass, MBBS to whom the complainant visited for treatment for her scalp, stated that,

“ This is to certify that Ms. Aashna Roy aged 42 years has been suffered from scalp disorder due to chemical treatment done by the Head of Hair Treatment.”

Another question was – What compensation the complainant was entitled to?

Coram referred to the Supreme Court decision in Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668, wherein it was observed that,

“ While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

Keeping in consideration the Supreme Court decision with respect to awarding compensation, Commission opined that the reasonable and just compensation was to be awarded to the complainant.

There is no doubt that the women are very cautious and careful with regard to their hair. They spend a handsome amount on keeping the hair in good condition. They are also emotionally attached to their hair.

Commission added to its analysis that, complainant was a model for hair products because of her long hair and was done modelling for VLCC and Pantene.

Due to haircutting against her instructions, she lost her expected assignments and suffered a huge loss which completely changed her lifestyle and shattered her dream to be a top model.

Complainant also underwent severe mental breakdown and trauma due to the negligence of the OP 2 in cutting her hair and could not concretise her job and finally lost the same.

Hence, in Commission’s opinion, OP 2 was guilty of medical negligence in hair treatment, as complainant’s scalp was burnt and still there is allergy and itching due to the fault of staff of OP 2.

While concluding the matter, Commission allowed the complainant partly and granted compensation of Rs 2,00,00,000 within a period of 8 weeks. [Aashna Roy v. Yogesh Deveshwar, Consumer Case No. 1619 of 2018, decided on 21-09-2021]


Advocates before the Commission:

For the Complainant: In-person

For the Opposite Parties: Mr. Parag P. Tripathi, Sr. Advocate and Mr. L.K. Bhushan, Ms. Aditi Awasthy and Mr. Srinivasan Ramaswamy, Advocates with him.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Discussing a matter wherein allegedly a defective mobile phone was received From Amazon sellers, Bench of Dr Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) emphasized the concept of punitive damages.

Present Consumer complaint under Section 2(1)(d)(i) read with Section 12(1)(c) of the Consumer Protection Act had been filed against Amazon Seller Service Private Limited seeking refund of the amount of Rs 9,119 paid towards purchase of Mobile Phone along with litigation and transportation cost of Rs 1 lakh and Punitive Damages to the tune of Rs 7,43,00,00,000 for causing legal injury and financial loss to the complainant and other innumerable consumers.

Complainant purchased a mobile phone from OP. It was contended that after using the Mobile Phone for a couple of days, it started heating up which compelled him to return the same as per the Easy Return Policy of the OP advertised on T.V. Serial, Media and Print Media.

Since, the Complainant was not able to click the option of Return/Exchange on their website, he called the Customer Support of the Opposite Party and was informed that they had changed its Return Policy on the items purchased.

Complainant sent an email to the OP stating that they had always advertised about Easy Returns and that at the time of purchase, it had not been mentioned that the Refund/Return Policy of the Opposite Party has been changed which amounted to Unfair Trade Practice on their part. Vide an email the OP apprised to the Complainant that if he had received a defective/damaged Phone, he would be eligible only for free replacement and not for a refund.

Further, in the invoice bill of the phone along with the order list, the option of returning the phone was given.

Hence, he stated that the action/inaction of the OP was in violation of the Right of Consumers to be informed about the product and to decide as to whether to purchase the same or not.

Complainant alleged that the OP was involved in Unfair Trade Practice by making a false promise and running misleading advertisement about Easy Refund of the Product. The OP was bound to disclose all the necessary information about its Product enabling the Consumers to take a decision as to whether buy the said product or not.

Analysis, Law and Decision

Commission while referring to the decision of Supreme Court in Magma Fincorp Ltd. v. Rajesh Kumar Tiwari, (2020) 10 SCC 399, answered the question as to whether the punitive damages claimed by the complainant can be treated as part of the compensation for determining the pecuniary jurisdiction of the commission.

In the said decision it was held that the Punitive damages cannot be treated as a form of compensation.

Punitive damages under Section 14(1)(d) of the Act cannot be granted by the Consumer Fora in cases of breach of contract unless the act is so reprehensible that it calls for punishment of the party in breach, by imposition of punitive or exemplary damages.

In the instant matter, Bench stated that some of the purchasers are purchasing the products on the online website and after using the said product for a few days, seek a refund of the amount paid by them.

The above was the reason why OP changed its policy of Easy Return.

Commission added that, in case the Complainant had received the defective mobile phone, the remedy was still available with him to get it replaced despite the change in Return/Refund Policy”.

OP had published in the newspaper, namely the Indian Express about the change in its Return Policy with the Heading “Amazon no longer has a return and get refund policy for mobiles” along with this, the said information was also published in NDTV Gadget 360 with the heading that “Mobile Purchased from Amazon India No longer Eligible for Return”

In so far as the option appearing in the Invoice Bill of the Mobile Phone regarding the refund, was concerned, Commission opined that since there was a gap of only 16 days from the date of change of policy, i.e. 07-02-2017 and purchasing of mobile phone, i.e. 23-02-2017, it was not possible to rectify the said mistake or reprint the Invoice Bill.

Therefore, present matter was not a fit case for awarding exemplary punitive damages and action/inaction of the OP did not warrant any punishment. [Paras Jain v. Amazon Seller Services (P) Ltd., Consumer Case No. 930 of 2017, decided on 22-09-2021]


Advocates before the Cmmission:

For the Complainant : Mr. Paras Jain, In person

For the Opposite Party: Mr. Joy Basu, Sr. Advocate with Mr. Amit Kr. Mishra, Mr. Mohit Singh, Mr. Turab Ali Kazmi, Ms. Samridhi Hota and Mr. Kank B, Advocates

Case BriefsSupreme Court

Supreme Court: While addressing the matter wherein a passenger suffered loss and agony due to delay in the arrival of train, M.R Shah and Aniruddha Bose, JJ., observed that,

These are the days of competition and accountability. If public transportation has to survive and compete with private players, they have to improve the system and their working culture.

Background

Aggrieved by the National Consumer Disputes Redressal Commission, State Commission and District Forum, wherein the    Northern Western Railway and another were directed to pay to the complainant – respondent Rs 15,000 for taxi expenses, Rs 10,000 towards booking expenses along with Rs 5,000 towards mental agony and litigation expenses. Aggrieved by the same, present special leave petition was preferred.

Respondent had booked 4 tickets from Northern Western Railway along with the return reserved tickets.

Respondent’s case was that, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet. But the said train did not reach in time and it was delayed by 4 hours and reached Jammu at 12:00 noon.

Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight.

Further, the respondent had to book private taxi to reach Srinagar.

In view of the above background, respondent claimed a loss of Rs 9,000as airfare, Rs 15,000 towards taxi hire charges for going from Jammu to Srinagar, Rs 10,000 on account of booking of boat in Dal Lake.

Analysis, Law and Decision

Supreme Court opined that in view of the facts and circumstances of the case, impugned orders awarding compensation to the complainant do not warrant any interference.

No evidence was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of reasons beyond their control. 

At least the railways were required to explain the delay which the railways failed.

Bench held that unless and until the evidence was laid explaining the delay and it was established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains.

Hence, in the present matter, the decision of the Commission’s observing that there was a deficiency in service leading to the railways being liable to pay the compensation to the passenger – complainant was rightly observed.

While concluding the matter and stating that no interference of this Court is called for, Bench emphasized that,

Citizen/passenger cannot be at the mercy of the authorities/administration. Somebody has to accept the responsibility.

 [Northern Western Railway v. Sanjay Shukla, Special Leave Petition (C) No. 13288 of 2021, decided on 6-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. agreed to reduce the sentence of the appellant−husband convicted for offence of cruelty to woman punishable under Section 498-A IPC, if he pays Rs 3 lakh as compensation to his wife and children. The Supreme Court observed that:

“The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 CrPC is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.”

Complainant was the second wife of the appellant. Two children were born to them from the wedlock. The complainant alleged that on instigation of the first wife, the appellant started mental and physical torture and made dowry demands. Consequently, the complainant had to go back to her parent’s house. A complaint was registered and the appellant was convicted by the trial court for the offence punishable under Section 498-A IPC. He was sentenced to three years rigorous imprisonment. Appeal filed by the appellant was dismissed by the first appellate court. Criminal revision preferred by the appellant before the High Court met the same fate. Aggrieved, the appellant approached the Supreme Court.

The appellant prayed for extension of benefit of Probation of Offenders Act, 1958 which was declined by the Supreme Court. However, the Court expressed that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to the complainant for herself and the children apart from whatever maintenance was being paid under Section 125 CrPC.

The appellant submitted that he was willing to pay a compensation of Rs 3 lakh to the complainant and the children. The complainant was agreeable to receive the compensation of Rs 3 lakh. Further, on compensation being paid, she had no objection if the sentence of the appellant is reduced and/or if he is granted the benefit of the Probation of Offenders Act. In such view of the matter, the Court said that:

“[K]eeping in mind the nature of the offence, we had declined the benefit of the Probation of Offenders Act to the appellant. However, if the petitioner/appellant is showing remorse and is willing to make arrangements for [the complainant] and his two children born out of the wedlock, we would not like to come in the way of such an arrangement, which should be beneficial to [the complainant] and her children.”

Noting that the appellant had undergone about seven months of imprisonment, the Court was inclined to reduce the sentence to the period already undergone in case he pays a sum of Rs 3 lakh to the complaint for her benefit and the children’s benefit. The Court however made it clear that if the amount is not paid, the appellant will have to undergo the remaining part of the three years’ sentence. [Samual Sk. v. State of Jharkhand, 2021 SCC OnLine SC 645, decided on 31-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief. 

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: The Division Bench comprising of Rohinton Fali Nariman and B.R. Gavai, JJ., settled a decade-old land-acquisition dispute by directing NOIDA (New Okhla Industrial Development Authority) to pay compensation to the aggrieved land-owners who were dispossessed of their land by the authority without any land acquisition proceeding and without the authority of law.

Background

The Petitioner was the lawful and absolute owner and in possession of total land admeasuring 0.44325 hectares (4432.5 sq. meters) in Khasra No. 135 and 138 in Gautam Budh Nagar. In the year 2010, he was wrongfully and illegally dispossessed from his land by the Respondent without following due process of law and without any land acquisition proceedings. Being aggrieved, the petitioner approached the High Court of Judicature of Allahabad and later on to the Supreme Court seeking demarcation and peaceful vacant possession of the Petitioner’s land located inside the Dalit Prerna Sthal developed by the Respondent. The said petition was joined by a similarly placed and aggrieved intervener-petitioner 2, who had also lost his land admeasuring 1.32975 hectares (13,297.5 sq. meters) in Khasa No. 135 and 138 Gautam Budh Nagar, which was wrongfully taken over by the Respondent.

To unravel the issue, the Supreme Court had appointed Mr. Gaurav Agrawal as Advocate Commissioner to make a site inspection and produce a map stating who was in possession of what portion. Following the report filed by Mr. Gaurav Agrawal, the Bench had directed the ADM, Gautam Budh Nagar to furnish a report of demarcation. The report filed by the ADM made it clear that the parties’ lands had never been acquired and further revealed that NOIDA was indeed in possession of lands in excess of what was acquired under various notifications.

Final Order of the Court

After considering the ADM’s report, the Bench had directed the NOIDA to allot the petitioners appropriate land elsewhere admeasuring the extent to which the petitioner’s and the applicant’s land was taken over by them without authority of law. However, the matter was further contested by the NOIDA.

It was in the abovementioned backdrop that the Bench had appointed a valuer to conduct a valuation exercise on the disputed land and determine the market value as it was in the year of their dispossession; which was determined and even reiterated on being objected by the NOIDA at Rs. 20,000/- per sq. meter.

Consequently, while disposing of the matter, the Bench had awarded compensation to the petitioners at the rate determined by the valuer. The NOIDA was directed to pay the aforesaid sum to the petitioner and the applicant within a period of eight weeks. Though, the said final order was assailed by NOIDA in a review petition but the same was dismissed.

Contempt Petition

The instant contempt petition was filed to highlight wilful non-compliance of the above mentioned final order by the contemnor CEO of NOIDA by sleeping over repeated claim applications made by the petitioners seeking release of the awarded compensation.

In view of the above, the Bench directed NOIDA to release the awarded compensation (Approx 36 crores) in favour of petitioners.[Nayan Tara v. Ritu Maheshwari, Contempt Pet. (C) No. 316/2021, decided on 30-07-201]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s): Mr. Vijay Hansaria, Sr. Adv.
Mr. Sanjay Sarin, Adv.
Mr. Mohit Paul, AOR
Mr. Pratyush Miglani, Adv.
Mr. Nikhil Verma, Adv.
Ms. Sunaina Phul, Adv.
For Respondent(s): Mr. Ravindra Kumar, AOR
Mr. Kamlendra Mishra, AOR
Mr. Gaurav Agrawal, AOR
Mr. Mohit Paul, AOR
Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Case BriefsSupreme Court

Supreme Court: After the Court was approached seeking direction to the Government to provide notified ex-gratia monitory compensation of Rs.4,00,000/- to the families of deceased who succumbed to COVID-19, the bench of Ashok Bhushan and MR Shah*, JJ has issued directions asking the National Disaster Management Authority to make uniform guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19.

According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further.

“… these deaths have affected the families from all classes – the rich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner.”

Noticing that it is the mandatory statutory duty cast upon the National Authority under Section 12 of the Disaster Management Act, 2005 to recommend guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life, the Court held that,

“… not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section 12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005.”

Here are the direction issued by the Court:

1) National Disaster Management Authority to recommend guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19, as mandated under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster – Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19.

However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration the observations made hereinabove, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005.

This needs to be done within a period of six weeks from today;

2) The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19.

“… it is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who died due to Covid-19. In the death certificate also, if a person has died due to Covid-19 and/or any other complications/disease due to Covid-19, it should be specifically mentioned in the death certificate.”

Such guidelines may also provide the remedy to the family members of the deceased who died due to Covid-19 for correction of the death certificate/official document issued by the appropriate authority, if they are not satisfied with the cause of death mentioned in the death certificate/official document issued by the appropriate authority; and

3) The Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts.

[Reepak Kansal v. Union of India, 2021 SCC OnLine SC 443, order dated 30.06.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Petitioner-in-person, S.B. Upadhyay, Sr. Adv., Reepak Kansal, Adv., Yadunandan Bansal, Adv., Nishant Kumar, Adv., Prince Arora, Adv., Shahnaz Rahman, Adv.,  Harisha S.R., AOR

For Respondent(s): Tushar Mehta, SG, Aishwarya Bhati, ASG, Rajat Nair, Adv., Amit Sharma, Adv., B.V. Balram Das, AOR, Chirag M. Shroff, AOR

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., allowed the petition and granted compensation for infringement of right to a speedy trial under Article 21 of the Constitution of India.

Background

The facts of the case are such that the petitioner herein has filed the instant writ petition stating inter alia that he remained in jail for commission of offence under Sections 420/34 and 120B of Penal Code, 1860 i.e. IPC from 14.5.2012 till the date of delivery of judgment i.e. 08.11.2016 i.e. 4 years, 6 months and 7 days, whereas he has been awarded sentence only for three years for offence under Section 420/34 of the IPC and three years for offence under Section 120B of the IPC and sentences have been directed to run concurrently, as such, it is a clear case where his constitutional right of speedy trial enshrined in Article 21 of the Constitution of India has admittedly been violated and for which he is entitled to appropriate compensation jointly and severally from the respondents.

Submissions

Counsel for the petitioner Ms Reena Singh submitted that that “right to speedy trial” is his fundamental right and on account of non-conclusion of trial within a reasonable time, the petitioner remained in jail for a period more than he has been sentenced now at the conclusion of trial, which is violative of his fundamental right as guaranteed under Article 21 of the Constitution of India and for which, he is entitled for compensation of ₹ 30 lacks for his said illegal detention for about 1 year, 6 months and 8 days jointly and severally from the respondents.

Counsel for the respondents Mr Jitendra Pali submitted that detention of the petitioner was judicial custody in accordance with law and the procedure established by law, as such, the same cannot be termed as illegal detention and the petitioner. It was further submitted that the petitioner is not entitled for any compensation as his fundamental right of speedy trial has not been violated and he remained in judicial custody till the date of judgment for commission of offence which have been found proved by the trial Court.

Mr Prasoon Agrawal (Amicus Curiae) relied on judgment P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 submitted that “right to speedy trial” is a fundamental right of an accused under Article 21 of the Constitution of India.

Observations

  1. The court relied on “Common Cause” v. Union of India, (1996) 4 SCC 33 and observed that it has clearly been established that the right to speedy trial in criminal case is valuable and important right of the accused therein and its violation would result in denial of justice and that would result in grave miscarriage of justice.
  2. The Court relied on judgment Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and wherein it was held ” Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”

The Court thus observed that this Court in the exercise of jurisdiction under Article 226 of the Constitution of India under public law, can consider and grant compensation to the victim(s) who has suffered an infringement of fundamental right i.e. right to life and personal liberty guaranteed under Article 21 of the Constitution of India.

  1. Right to life is a fundamental right guaranteed under Article 21 of the Constitution of India and for its breach or violation, the petitioner is entitled to monetary compensation from the respondents who are responsible for its breach.
  2. The Court relied on judgment Vijay Kumar Gupta v. State, 2008 SCC OnLine Pat 568 has held that detention of a prisoner in custody in excess of the period that he has been sentenced infringes upon his fundamental right to life and liberty and as such, he is entitled for monetary compensation and further held that both the prosecuting authority and Court remained oblivious of his continuous detention for more than a period, the sentence for any of the offence would have carried.

The Court observed that following the principles of law and reverting to the facts of the present case, it is quite vivid that the petitioner remained in jail as undertrial for a period of 4 years, 6 months and 7 days, whereas he has been awarded punishment of 3 years for offences under Section 420/34 and Section 120B of the IPC (separately) and both sentences to run concurrently, as such, he remained in jail in excess (one year and six months) for more than the sentence awarded by concerned trial Magistrate, on account of delay in conducting the trial, despite twice this Court while hearing bail applications on 22.4.2013 and 24.6.2014 directed the trial Magistrate to conclude the trial expeditiously, which was not taken cognizance of by the learned trial Magistrate by which the petitioner continued in jail for a period more than the actual sentence awarded violating the petitioner’s right to speedy trial guaranteed under Article 21 of the Constitution of India and for which he is entitled for monetary compensation.

Decision

The Court held the petitioner will be entitled for ₹10,400×18=1,87,200/along with 6% interest from today till the date of payment jointly and severally which respondents No.2 and 4 will deposit within a period of 30 days from today.”

 [Nitin Aryan v. State of Chhattisgarh, 2021 SCC OnLine Chh 1636, decided on 07-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the 2012 incident wherein two fishermen were killed while fishing off the coast of Kerala after allegedly two Italian Military Naval officials fired at them from a passing ship, the bench of Indira Banerjee and MR Shah*, JJ has closed all the proceedings against the marines in India including criminal proceedings in exercise of powers under Article 142 of the Constitution of India.

Criminal proceedings were initiated against the marines after the Kerala police apprehended them and two months after the incident, the Republic of Italy made ex-gratia payment of compensation to the legal heirs of the deceased persons. The vessel, from which the shots were fired, was allowed to sail away, subject to certain terms and conditions along with all 24 crew members, only after the order passed by the Supreme Court in May, 2012. The unfortunate incident had occurred in February, 2012.

Important facts that persuaded the Court to close the proceedings 

  • the Arbitral Tribunal constituted under Annex VII of UNCLOS has delivered its award dated 21.05.2020 under which the Republic of Italy has agreed to pay the compensation of Rs. Ten crores, over and above the amount of ex-gratia amount already paid
  • the Arbitral Tribunal has also duly recorded Republic of Italy’s commitment that following the award Italy will resume its criminal investigation into the incident of 15.02.2012.

As an aftermath of the Arbitral Tribunal’s award, the Republic of Italy deposited the said amount of Rs. Ten Crores and the State of Kerala as well as the heirs of the deceased fishermen and even the owner of the boat which was damaged agreed to accept the award.

The Court was, hence, of the opinion that

“…the amount of compensation of Rs. Ten Crores over and above the ex-gratia amount of compensation already paid to the heirs of the deceased fishermen offered and deposited by the Republic of Italy, deposited pursuant to award dated 21.05.2020 passed by the Arbitral Tribunal can be said to be a reasonable amount of compensation and can be said to be in the interest of heirs of the deceased, we are of the view that this is a fit case to close all the proceedings in India including criminal proceedings in exercise of powers under Article 142 of the Constitution of India.”

It was hence, directed that Rs. Ten Crores now lying with the Supreme Court Registry be transferred to the High Court of Kerala, out of which Rupees Four Crores be paid to the heirs of each deceased and Rs. Two crores be paid to the owner of the boat – St. Antony.

However, the Court clarified that while disbursing the amount of compensation to the heirs of the deceased fishermen, i.e, Rs. Four Crores to the dependents/heirs of each deceased, their interest is also required to be protected so that the amount of compensation paid to them is not frittered away, by investing the amount in the name of the dependents/heirs of each deceased in a Fixed Deposit in a nationalised bank for some time and they will be paid the periodical interest accrued thereon.

The Court, hence, asked the Chief Justice of the Kerala High Court to nominate a Judge to pass appropriate order of disbursement/investment of the amount to be paid to the heirs of each deceased (Rupees Four Crores each) so as to protect the interest of the heirs and ensure that the compensation is duly received by the heirs and not diverted/misappropriated. The order of disbursement/investment is to be passed after hearing the heirs of each deceased and appropriate order be passed, protecting the best interest of the heirs of each deceased.

[Massimilano Latorre v. Union of India, 2021 SCC OnLine SC 428, decided on 15.06.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Mr. Suhail Dutt, Sr. Adv.

Mr. Diljeet titus, Adv.

Mr. Jagjit Singh Chhabra, AOR

Mr. Ujjwal Sharma, Adv.

Mr. Baljit Singh Kalha, Adv.

Mr. Ninad Laud, Adv.

Mr. Akshat Bhatnagar, Adv.

Ms. Ananyaa Mazumdar, Adv.

Mr. Saksham Maheshwari, Adv.

For Respondent(s): Mr. Tushar Mehta, SG

Mr. Aman Lekhi, ASG

Mr. S.A. Haseeb, Adv.

Mr. Suhashini Sen, Adv.

Mr. Rajat Nair, Adv.

Mr. B. V. Balaram Das, AOR

 Mr. G. Prakash, AOR

Mr. Jishnu M.L., Adv.

Ms. Priyanka Prakash, Adv.

Ms. Beena Prakash, Adv.

 Mr. C. Unnikrishnan, Adv.

Mr. A. Karthik, AOR

Ms. Smrithi Suresh, Adv.

Ms. Sreepriya K., Adv.

Mr. Arsh Khan, Adv.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., addressed an interesting question as to whether the tribunal could due to the prolonged litigation re-decide compensation already awarded in an accident claim or it was to confine itself to the objection raised by the owner of the vehicle, which was a liability to pay compensation.

Background

The facts of the instant case were such that the original claimant who was going on his vehicle at 7.45 a.m and was hit by bus bearing No. DL IP 6567 which was being driven by driver rashly and negligently. The injured was rushed to the hospital where he was treated for injuries received due to an accident. On petition being filed for the claim of compensation, summons were issued to the owner of the bus (owner), namely, Manoj Kumar. The insurance company was permitted to contest the petition under Section 170 of the Motor Vehicles Act, 1988. However, due to the non-appearance of the owner, the matter proceeded ex parte and since the insurance of the vehicle was not proved, an award was passed in the favour of the injured on 27-09-2010.

Subsequent Award granted by the Tribunal

Subsequently, during the execution petition, the owner claimed that his vehicle was insured and the insurer would be liable to satisfy the decree. It was further contended by the owner that the summons never reached him, therefore, ex-parte order against him was liable to be set aside in per Order 9, Rule 13 of CPC. Meanwhile, the injured died out of the injuries sustained due to the accident and medical evidence was also filed by his legal representatives (claimant).

The Tribunal permitted owner to produce documents so as to prove that the vehicle was insured and went to decided the matter afresh. The Tribunal on re-appreciation of evidence opined that the deceased died due to kidney failure and disallowed majority of the claim amount under the head of medical expenses on the ground that the documents were not proved and granted paltry sum of Rs. 1,19,000/- as medical expenses as against more than twenty lacs spent by the claimant by the time award dated 27-09-2010 was pronounced. However, regarding the question of liability to pay compensation, the Tribunal had fastened the insurer with the liability.

Earlier, the Tribunal while deciding the claim petition on 27-09-2010, granted medical expenses which came to Rs. 20,84,750, which was rounded up to Rs. 20,16,500/- and loss of five months’ salary for(163 days), which came to Rs. 63,250/- and Rs. 5,000/- for pain shocks and sufferings.

Whether the tribunal was justified in re-deciding the compensation already awarded?

The Tribunal, in subsequent proceedings, went on to hold that the death was due to dialysis which did not had any causal connection with the accident and reduced the compensation on that ground. This finding could not withstand the judicial scrutiny as it was not within the purview of the tribunal to decide how the claimant died while deciding issue relating to negligence and was beyond the purview of the said issue.

It is settled position of law that the award of the Claims Tribunal shall be paid by owner or driver of the vehicle in the accident and they would be indemnified by insurer. The Tribunal committed a mistake rather irregularity by setting aside the award. The Tribunal further committed an error by re-deciding the compensation. The decree could have been set aside in part namely qua issue of liability as it was a award which could be set aside in part there was definitely severable decree. The Bench opined that, one way for the Tribunal to resolve the controversy and avoid prolonged litigation was to direct the owner to pay the compensation and later on have it indemnified by the insurer, or what could have been done was the Tribunal to decide the matter of liability alone rather that re-fixing the compensation as the Tribunal was not even asked to reconsider the question of quantum and interest.

Do personal right of action abate with the death of the person?

Citing the decision in Madhuben Maheshbhai Patel v. Joseph Francis Mewan, 2014 LawSuit (Guj) 2214, the Bench dealt with the issue of applicability of the maxim “actio personalis moritur cum persona”  which translates to on the death of original claimant, personal right of action abates”, The Bench opined that the said maxim could not be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act.

“Once the status of claimants as legal heirs or legal representatives is conceded and acknowledged, to deny benefit of compensation to them on the ground that injury was personal to the claimant, it will be giving a premium to the wrong doer and it would defeat the very purpose and object of beneficial piece legislation.”

Hence, even after death of injured, claim petition does not abate and the right to sue survives to his heirs and legal representatives.

Verdict of the Court

In case of motor accidents, the endeavour is to put the dependents/ claimants in the pre-accidental position. Considering that the injured which was 38 years at the time of the accident,  suffered 40% permanent disability and was in permanent government service earning a sum of Rs. 11500/- per month and that 15 years had already elapsed and 9 years had elapsed after the death of the claimant, the Bench held his medical expenses as granted by the Tribunal in its order dated 27-09-2010 should be maintained entirely. The additional amount of five months’ salary as actual loss to the estate granted by the Tribunal was also maintained.

Further, an award of a lump-sum amount of two lacs of rupees in addition to the compensation as loss to estate and mental harassment to the legal heirs for protracted litigation was also awarded. Since, the injured had passed away, his family was awarded a further sum of two lacs and fifty thousand for loss to estate and additional sum of Rs 50000 for mental trauma and incidental expenses for looking after the deceased after he suffered the injuries. Conclusively, total compensation for a sum of Rs.24,00,000 was granted to the claimant which was to be paid by the insured. As far as issue of rate of interest was concerned, it was held to be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johat, 2019 (2) T.A.C.705 (S.C.) from the date of the filing of the claim petition till the date of actual deposit.[Satish Chand Sharma v. Manoj Kumar, FAFO No. 3160 of 2018, decided on 26-03-2021]


Kamini Sharma, Editorial Assistant has reported the brief.


Appearance before the Court by:

Counsel for Appellant: Abhishek, Umesh Kumar Singh
Counsel for Respondent: Nishant Mehrotra

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., allowed the appeal of the claimants in a motor vehicle accident claim while dismissing the appeal of the insurance company.

Claimants and Insurance Company on being aggrieved by the award and decree passed by Motor Accident Claims Tribunal, filed the present appeal.

Claimants were the legal heirs namely widow and parents of the deceased who died in the vehicular accident.

Deceased was earning Rs 25,00,000 and claimants claimed a sum of Rs 3,40,50,000.

Respondent’s truck was being driven by Afzal Sekh and was insured with National Insurance Company Limited who had been saddled with the liability to make good the amount of compensation.

Due to the truck rash and negligent driving the motorcycle of the deceased was dashed by the truck.

Insurance Company challenged the award on the grounds that the deceased was a contributor to the accident having taken place, that income considered by the Tribunal was on the higher side and the same would not have been made the basis of compensation.

Claimants felt aggrieved as the tribunal did not consider the amount for future loss of income and did not even grant proper interest. Tribunal also erred in directing 2/3rd of the compensation to be paid to the parents and 1/3rd to the widow.

What is Negligence?

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 which is normally accidental.

More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. 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

It means that a person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.

In the present set of facts and circumstances, Bench while referring to the recent decision of the Supreme Court in Md. Siddiqui v. National Insurance Co. Ltd (2020) 3 SCC 57 would come to the aid of the claimants as there was no colossal connection of the deceased having contributed to the accident.

What is Liability?

Liability of the Insurance Company.

While considering the issue of breach of policy condition under Section 149 of the Act Bench relied to elaborately sift the documentary evidence on record and whether the owner had taken proper care and caution to see that the driver was authorised to drive the vehicle or not.

High Court opined that the Insurance Company’s contention that the driver was not holding valid and effective driving licence could not be accepted.

While considering the case of the Insurance Company, can it be said that the driver did not have valid driving licence? This question has to be answered in favour of the claimants and owner.

Owner of the vehicle was satisfied, and it was proved that he had taken all care and caution that vehicle was being driven by a person who was authorised to drive the same which was even apparent from the fact that the owner had gone to the extent of producing evidence so as to bring home the fact that there was no breach of policy condition.

Hence, it was held that no breach of policy conditions was committed.

Compensation

It was submitted that the tribunal did not grant the proper amount under the head of non-pecuniary damages to the widow who became a widow at the age of 24 and who was not re-married.

Even the Insurance Company felt aggrieved and challenged the compensation.

Supreme Court held that in the case of motor accident compensation, guess work is inevitable.

Compensation payable to the appellants in view of the decision of the Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680

With respect to the issue of rate of interest, it should be 7.5% in view of the Supreme Court decision in National Insurance Co. Ltd. v. Mannat Johat, 2019 (2) T.A.C 705 (S.C.)

Disbursement and Tax at Source

Claimants Counsel Ram Singh submitted that several years elapsed, parents are at the fag end of their lives, therefore, on additional deposit being made, this Court may not direct deposit of said amounts in fixed deposits and though this Court had time and gain directed the Insurance Companies not to deduct TDS, the same was being deducted.

Bench relied on the Supreme Court decision in A.V. Padma v. R. Venugopal, (2012) 3 SCC 378.

Further, Court stated that people even rustic villagers’ have bank account which had to be compulsorily linked with Aadhar, therefore, what is the purpose of keeping money in fixed deposits in banks where a person, who suffered injuries or lost his kith and kin, was not able to see the colour of compensation.

“..time is now ripe for setting fresh guidelines as far as the disbursements are concerned.”

Court expressed that the guidelines in General Manager, Kerala, SRTC, Trivandrum v. Susamma Thomas, (1994) 2 SCC 176, are being blindly followed causing more trouble these days to the claimants as the Tribunals are overburdened with the matters for each time if they require some money, they have to move the tribunal where matters would remain pending and the tribunal on its free will, as if money belonged to them, would reject the applications for disbursements, which is happening in most of the cases.

The parties for their money have to come to court more particularly up to High Court, which is a reason for our pain.

In High Court’s opinion, Tribunal may release the money with certain stipulations and that guidelines have to be followed but not rigidly followed as precedents.

Further, it was added that while sitting in Single Bench of this Court, Dr Justice Kaushal Jayendra Thaker held that the Insurance Company should not deduct any amount under T.D.S in the case of Sudesna v. Hari Singh, F.A.F.O. No.23 of 2001, decided on 26.11.2020, which should be strictly adhered to.

Hence, appeals by claimants were partly allowed and the appeal preferred by the Insurance Company was dismissed.

Respondents shall jointly and severally liable to pay the additional amount with an interest at the rate of 7.5%

Court directed that on deposit of amount, Tribunal shall disburse the entire amount by way of account payee cheque or by way of RTGS to the account of the claimants. [National Insurance Co. Ltd. v. Anuradha Kejriwal, 2021 SCC OnLine All 269, decided on 13-04-2021]


Advocates before the Court:

Counsel for Appellant: Kuldip Shanker Amist, Manoj Nigam

Counsel for Respondent: Manoj Nigam, Amit Kumar Sinha, Deepali Srivastava Sinha, Mata Pher, Ram Singh

Hot Off The PressNews

The persistence of the National Human Rights Commission, India in a case of food poisoning of 15 children in a government school in Maliguda, Odisha, resulted in the payment of Rs. 8 lakh. Out of which Rs. 50,000 each has been paid to the 14 students who fell sick and Rs. 1 lakh to the mother of boy who succumbed to his illness.

For negligence, 2 teachers were put under suspension and departmental proceedings initiated against them. The complaint was received about the incident on 20th January 2018.

Notice by NHRC 

Earlier, in response to the notices of the Commission, the reports from the State Govt. revealed that an ex-gratia of Rs.2 Lakhs was already sanctioned by the Collector for the payment to the NoK of the victim. Punitive action was initiated against the 2 teachers for negligence.

Show Cause Notice

Subsequently, the Commission issued a show-cause notice to the Chief Secretary, Govt. of Odisha why a sum of Rs.1 Lakh be not recommended to be paid u/s 18 of the Protection of Human Rights Act to the Next of kin of the deceased student in addition to the ex-gratia of Rs.2 Lakhs already sanctioned by the Collector.

Compensation

Pursuant to the directions of the Commission, the Govt. of Odisha submitted the compliance report along with proof of payment, wherein it has been stated that Rs. 1 lakh has been paid to the mother of the deceased boy and Rs. 50,000/- each to other 14 students.


National Human Rights Commission

[Dt. 09-04-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram of Justice Adarsh Kumar Goel, Chairperson and Justice Sudhir Agarwal, Justice Brijesh Sethi, Judicial Members and Dr Nagin Nanda, Expert Member, addressed an application with regard to illegal mechanical sand mining.

Question for consideration

Remedial action against illegal mechanical sand mining on the river bed of River Yamuna and construction of a temporary bridge with hume pipes at Shamli, Uttar Pradesh.

Earlier, Tribunal in light of the Joint Committee’s report had considered the above-stated issue and had directed remedial action against which the entity carrying on mining approached the Supreme Court by way of appeal. Though Supreme Court had dismissed the said appeal.

Vide an Order dated 28-11-2019, Tribunal noted the remedial action taken by way of levy of compensation and revocation of Environmental Clearance was inadequate.

Vide an Order dated 29-10-2020, compensation for damage to the environment had to be in the light of the cost of restoration with deterrent element and having regard to the financial capacity of the violator. This aspect does not seem to have been considered.

Further, the Bench stated that State PCB and District Magistrate may take further appropriate action. Compensation was recovered for only 48 days, though illegal mining was found for about 5 years, as per the report.

Tribunal noted the legal position with regard to the payment of compensation on polluter pays principle. Compensation is equal to loss caused or suffered.

In Supreme Court’s decision of M.C. Mehta v. Union of India, (1987) 1 SCC 395 it was laid down that the person undertaking hazardous activity was liable for damage caused irrespective of negligence. Compensation has to have relation with the financial worth of the violator so as to be a deterrent.

With regard to compensation for illegal mining, Tribunal dealt with the matter in a recent order dated 26-02-2021 in NGT Bar Association v. Virender Singh (State of Gujarat), OA No. 360 of 2015.

Moving forward, Bench in view of the facts and circumstances of the case expressed that the issue of compensation may be revisited by the joint committee of State PCB and District Magistrate.

Application was disposed of in view of the above-stated reasons. [Sandeep Kharb v. Ministry of Environment, Forest and Climate Change; 2021 SCC OnLine NGT 137, decided on 07-04-2021]


Advocates before the Court:

Applicant: Mr. Pradeep Dahiya, Advocate for Applicant

Respondent(s): Mr. Amit Tiwari, Advocate for State of UP

Mr. Pradeep Misra, Advocate for UPPCB

Mr. Sanjeev Ralli, Senior Advocate with Mr. Saurabh Rajpal, Advocate. For M/s M.M Traders

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., addressed an issue wherein the association of fishermen sought compensation and jobs for the family of deceased fishermen who were recently killed by an attack apparently at the hands of the Sri Lankan navy. 

“There should be no duplication of job opportunities, but the appropriate departments of the State and the Centre may coordinate and provide adequate compensation in the wake of the untimely deaths of the four fishermen.”

Background

The association of fishermen sought to espouse the cause of the four local fishermen who were recently killed by an attack at the hand of the Sri Lankan Navy for allegedly straying beyond the territorial waters of India.

The two aspects involved in the present matter are as follows:

  • Compensation and Jobs for the family of the deceased fishermen
  • Appropriate Police Station to conduct the investigation into the deaths of the four fishermen.

With regard to the jobs to legal heirs and compensation demanded, the petitioner shall approach the Department of Fisheries of the Union Ministry of Agriculture and Farmers Welfare and Department of the Animal Husbandry and Fisheries under the State Government.

Bench stated that the State and Central Government may coordinate and provide adequate compensation in the wake of the untimely deaths of the 4 fishermen.

Investigation

The Centre and the State should coordinate to specify a particular authority, in accordance with law, that would head the investigation and bring the matter to a logical end by giving a due closure so that the families of the deceased fishermen are aware of the circumstances in which the four died.

High Court in view of the above disposed of the present petition.[Fisherman Care v. Union of India, 2021 SCC OnLine Mad 1291, decided on 22-03-2021]


For Petitioner: Mr L.P.Maurya

For Respondents: Mr S.Janarthanam CGSC for respondent Nos. 1 to 4

: Mr V.Jayaprakash Narayanan State Government Pleader for respondent No.5

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and Nataraj Rangaswamy, JJ., disposed of the appeal after modifying the compensation.

The facts of the case are such that the deceased Sanjeev M Patil was crossing the road as a pedestrian at 6:00 am in morning when a bus being driven in a rash and negligent manner by its driver dashed against the deceased as a result the deceased received grievous injuries and succumbed to the same. The claimants filed a petition seeking compensation which was thereby granted keeping in mind his young age and monthly income. Aggrieved by the same, the present appeal was filed.

Counsel for appellants submitted that the Tribunal has erred in its judgment and the accident took place 75 meters from the toll booth and that the deceased suddenly tried to cross the road without observing the vehicles approaching the toll counter. It was also submitted that there is a gross error in assessing the monthly income and compensation is excessive.

Counsel for the respondents submitted that as per an independent eye witness it is clear that the accident happened due to the rash and negligent driving of the bus by the driver and the monthly income calculated is correct as the deceased was a permanent employee and infact sums awarded under the heads “loss of consortium” and “loss of love and affection” are on the lower side and deserves to be enhanced suitably.

The Court relied on judgment Mangala Ram v. Oriental Insurance Co., (2018) 5 SCC 656 and observed that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt.

The Court thus held that “he Tribunal on meticulous appreciation of the evidence on record as well as on the basis of preponderance of probabilities has rightly held that the accident occurred on account of the negligence of the driver of the KSRTC bus.”

On the question of amount of compensation the Court held that after perusing the salary slip and income tax return statements and keeping in mind the future aspects the compensation was modified.

In view of the above, appeal was disposed off.[Gowri S. Patil v. Divisional Controller, 2021 SCC OnLine Kar 447, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: Taking note of an important legal question raised by the High Court of Kerala while hearing a Motor Vehicle Accident claim case, the 3-judge bench of NV Ramana, Surya Kant and Aniruddha Bose, JJ has agreed to decide the following question:

“Whether in the matter of awarding costs, the procedure and rules framed under the Constitution, CPC and the Rules made thereunder, for `Courts’, could be resorted to by the Claims Tribunal which is apparently, not a `Court.”

The petitioner in the Special Leave petition, challenged the Kerala High Court’s judgment whereby the High Court upheld the compensation granted by the Motor Accident Claims Tribunal, Kottayam in favour of the injured respondent. It was argued that

“the Tribunal does not possess any authority to award any costs as incidental to its power over the parties or the subject matter of the litigation, and the Tribunal being constituted under a special enactment is to be governed solely by the provisions of the Motor Vehicles Act, 1988.”

The Court, hence, allowed the special leave petition to the limited extent of examining the legal issue raised by the petitioner.

Advocate N.Vijayaraghavan will be assisting the Court as  amicus curiae.

[ICICI Lombard General Insurance Company v. MD Davasia,  2021 SCC OnLine SC 79, order dated 11.02.2021]


Appearance before the Court by

For Petitioner:  Rana Mukherjee, Sr.Adv., Nagesh, Adv., Daisy Hannah, Adv. and Shekhar Kumar, AOR.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sujatha and Sachin Shankar Magadum JJ., allowed the appeal and set aside the impugned judgment.

The facts of the case are such that the deceased, Chandrashekhar along with Kumar and other inmates were proceeding in a Maruthi Van from Kanipakam to Thimmasanapalli during which the deceased who was driving the vehicle lost control over the vehicle and met with an accident due to which Chandrashekhar and the inmate both died on the spot. The claimants filed a claim petition contending that the deceased was 27 years old and drawing salary as a Supervisor of around Rs 2,00,000 per annum. The Tribunal restricted the income of the deceased at Rs 40,000 and dismissed the claim petition as Chandrashekhar was a tort-feasor and hence the claimants are not entitled to compensation. Being aggrieved by the same, the claimants have preferred the instant appeal.

Counsel for the appellants submitted that the Tribunal has erred in observing that the deceased was a tort feasor and the accident is due to his negligence and rash driving. It was further submitted that there is no limit that the income should not exceed more than Rs 40,000 per year and the schedule is only a guidance to arrive at a multiplier as per Section 163-A of Motor Vehicle Act. It was also submitted that the Tribunal has inherent power to grant compensation by applying current provision of law and also that under Section 163-A the claimants need not prove the rash and negligent act of the driver.

The Court relied on judgment Ningamma v. United India Insurance Company, (2009) 13 SCC 710 and observed that absence of any specific claim under Section 166 MV Act in pleadings would not be an impediment for the Tribunal to examine the claimant’s rights under Section 166 MV Act. The claimants could not be deprived of getting just compensation in the cases where the claimants can make out a case under Section 166 MV Act.

The Court thus held that the claimants in the instant case have filed a claim petition contending that the deceased gad an annual income of Rs 2,10,000 per annum. Since the income of the deceased per annum exceeds the prescribed slab under Section 163 A of MV Act hence the matter was directed to be remanded back to the Tribunal for fresh consideration.

In view of the above, appeal was allowed.[Narayamaswamy v. Venkatesh. B, 2021 SCC OnLine Kar 202, decided on 01-02-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: The Division Bench of C. T. Ravikumar and K. Haripal, JJ., partly allowed the instant petition filed under Section 37 of Arbitration and Conciliation Act, 1996.

The grievances of the appellant were that, 0.0336 hectares of land owned and possessed by him was acquired by the Nation Highway Authority (NHA) for the purpose of developing National Highway-47. The Special Land Acquisition Officer had fixed the compensation at the rate of Rs 2,14,000 per Are, thereby the appellant was awarded total compensation of Rs 7,19,040. Aggrieved by the same, the appellant filed an arbitration petition under Section 3(c) (5) of the National Highways Act seeking enhancement of compensation.

The District Collector being the Arbitrator, enhanced the land value to Rs 5,88,000 per Are, i.e. at Rs 2,38,057 per cent. The Arbitrator, after considering the report of the District level Arbitral Committee appointed under Section 27(1)(a) of the Act, enhanced the compensation and fixed it at Rs 12,56,640.

The appellant again challenged the award before the District Court. The Court, while observing the constraints under Section 34 of the Act, stated that,

An award of the Arbitrator could be challenged only on the grounds enumerated in Section 34 of the Act and it could not be set aside merely on the ground that compensation awarded was insufficient.

The Bench though concurred with the findings of lower Court, observed that in arbitral award no amount was paid towards solatium or interest thereon. Reliance was placed by the Court on the judgment of Supreme Court in Union of India v. Tarsem Singh, (2019) 9 SCC 304, wherein, the Court had declared that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of proviso to Section 28 would apply to acquisitions made under the National Highways Act and had held Section 3J of the National Highways Act violative of Article 14 of the Constitution and declared it unconstitutional.

Thus, the Court while relying on Tarsem Singh case said that the verdict of Supreme Court in the said case had become the law of the land under Article 141 of the Constitution. Therefore, even in the absence of specific plea or proof, the appellant would be entitled to get solatium and interest on solatium as provided in Section 23(1A) and (2) and interest in terms of proviso to Section 28 of the Land Acquisition Act. [V.M. Mathew v. National Highway Authority of India,  2021 SCC OnLine Ker 387, decided on 25-01-2021]


Kamini Sharma, Editorial Assistant has put this story together