Case BriefsHigh Courts

Karnataka High Court: Hemant Chandangoudar J., dismissed the appeal and upheld the impugned award and judgment regarding compensation.

The facts of the case are such that the claimants have sustained accidental injuries on 30-03-2010 due to rash and negligent driving of the Toofan Jeep, and thereby filed claim petitions under Section 166 of Motor Vehicle Act to award just and proper compensation. The Tribunal awarded compensation by judgment and award dated 27-04-2013. Aggrieved by the same the instant appeals have been filed by the Insurance Company challenging the impugned judgment and award.

Counsel for the Insurance Company submitted that the Tribunal has committed an error in fastening liability on the insurance company as the vehicle was insured for private purpose whereas during the accident it was plyed on hire and hence was in violation of the comprehensive policy and against the provisions of Section 149 (2) of MV Act.

The Court relied on judgment titled United India Assurance Co. Ltd. v. Kalawathi, ILR 2001 KAR 2328 and observed that

“That apart we do not find any rationale for the insurer as a ‘State’ to discriminate between the paid inmate and the gratuitous inmate when the vehicle is a private vehicle plyed on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicle Act for payment of penalty and taxes applicable to the commercial vehicles. But from the standpoint of the insurer, it makes no difference whether the inmate is a paid passenger or gratuitous passenger. When the policy issued is a comprehensive policy covering risk of inmates of private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view, we hold that the terms in the policy, which discriminates the liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal.”

The Court held that no discrimination would be made between the paid inmate and gratuitous inmate when the vehicle is covered with a comprehensive policy. If the vehicle is a private vehicle, plyed on hire, the owner may be liable for the penal and fiscal consequences under the provisions of MV Act for payment of penalty and taxes but the insurer cannot avoid liability. Hence, fastening of liability on the Insurance Company to pay compensation cannot be found fault with.

In view of the above, appeals were dismissed.[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]


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Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V J., allowing the present writ petition, held that the provisions for compensation and payment of interest under the Land Acquisition Act shall also be attracted in the cases of acquisition by the National Highway Authority of India (NHAI).

 Brief Facts

The property owned by the petitioners herein were acquired for the development of Mannuthy-Wadukkumcherry section National Highway 47 invoking the provisions of the National Highways Act, 1956. Aggrieved by the amount of compensation fixed by the Land Acquisition Officer, the petitioners challenged the same before the Arbitrator. Though the amount of compensation was modified, no sum was granted towards solatium and interest on solatium. The present Writ Petition is filed to seek a writ of mandamus against the concerned authorities, in order to acknowledge the pending claim over solatium.

Issue

Whether the claim raised by the petitioner sustainable in the eyes of law?

 Observation

The Court placed reliance over the following cases pursuant to its decision;

  1. Union of India v. Tarsem Singh, (2019) 9 SCC 304; “We, therefore, declare 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 section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and therefore, declared to be Unconstitutional”.
  2. Special Deputy Collector, Thrissur v. Vinod Kumar, 2020 (2) KLT 399; “Para In the light of the aforesaid judgment of the Hon’ble Apex Court which struck down Section 3-J of the Act and the judgment of the Madras High Court, the provisions of the Land Acquisition Act, 1894 relating to the payment of solatium and interest will apply to the acquisitions made under the Act. In so far as the directions in the impugned judgment to make payment of solatium and interest are concerned, we observe that the statutory authorities are bound to compute the compensation in terms of Section 3-G of the Act and grant all benefits provided under the Land Acquisition Act, 1894. The benefits shall be given within a period of two months from the date of receipt of a copy of this judgment.

 Decision

While allowing the present petition the Court directed the concerned authorities to duly consider the representations made, and further act upon as expeditiously as possible.[K.B. Bhami v. Arbitrator (NH), Thrissur, 2020 SCC OnLine Ker 4505, decided on 15-10-2020]


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Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) decided three complaints in a combined order as the facts were similar.

The complainant had booked three residential flats floated by Opposite Party — Builder Co. Possession of these flats was to be given by the end of the year 2018, however, the builder Co. unilaterally enhanced the period to 42 months.

In the year 2016 itself, the entire loan amount with respect to each flat was disbursed by the Financial Institution concerned to the builder co. Till 2018, the complainant paid about 90% of the total price of the respective flats.

Complainant was aggrieved that the builder Co. failed to fulfil the contractual obligation as there was no remarkable progress at the site in question.

Even though the construction was not completed, Builder Co. was demanding full payment.

Being aggrieved with the above-stated of affairs and attitude and deficiency ins service by the Builder Co., the complainant filed complaints under Section 21(a)(i) of the Consumer Protection Act, 1986 seeking a refund of the entire amount paid to the Builder Co. with 24% per annum interest.

Builder Company also failed to file its written version with the statutory period of 30 days and the extended period of 15 days thereafter as prescribed under Section 13(1)(a) of the Act which expired on 01-01-2020, 04-01-2020 and 16-01-2020 respectively.

Constitution Bench of the Supreme Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2015) 16 SCC 20, held that the Consumer Fora, including this Commission, has no power to condone the delay beyond the period of 45 days from the date of receipt of the notice.

Commission’s Decision

1. Commission firstly addressed whether the purchase of three flats by the complainant would constitute the “COMMERCIAL PURPOSE” within the meaning of Section 2(1)(d) of the Act, 1986?

Bench relied on the decision of Supreme Court in Laxmi Engineering Works v. P.S.G Industrial Institute, (1995) 3 SCC 583, wherein it was held that the,

‘commercial purpose’ is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or availing service.

In the instant case, Builder Co. failed to show any evidence indicating that the complainant indulged in sale purchase of the properties in question for further sale or for earning benefits, hence the Complainant came under the ambit of Section 2(1)(d) of the Act, 1986 which defines “Consumer”.

2. Were the complaints filed prematurely?

The anxiety and apprehension of the Complainant about the impossibility of the completion of the Project before the agreed date was justified.

Any aggrieved Consumer has a right to approach at any stage the Forum or Commission for the redressal.

3. The refund of the deposited amount with the Builder Co.

Bench stated that for an ordinary common Buyer – Consumer, the two fundamentals, which are significant and material the ‘Cost’ i.e. the total cost, read with the schedule of making payment and the ‘Time’ that the total time period in which possession would be delivered.

Therefore, in the instant case two natural corollaries flow therefrom:

  • Consumer-Complainant has the fundamental option to obtain the possession of the Unit as and when it is offered by the Builder Co. and in addition, seek just and equitable compensation under the Act, 1986 for the delay in offering possession beyond the conveyed and understood period of 42 months if the delay was unreasonable.
  • Consumer-Complainant has the other option to claim a refund of the principal amount; interest thereon; and compensation, if the offer of possession of the Unit is unreasonably delayed beyond 42 months.

In the present matter, the complainant was not interested in taking possession, hence the builder Co. has to refund the entire amount received from the Complainant. 

4. Quantum of Compensation the complainant is entitled to.

Bench stated that indefinite or unreasonable delay with token compensation for delay cannot continue ad nauseam, ad infinitum (such a situation would be absurd).

In view of the line of facts, Bench held that the Complainant availed loan from the Financial Institutions and paid the interest as levied.

Thus, the Complainant is entitled to get a refund of the amount along with the interest which he has deposited with the Bank. The Complainant is also entitled to receive certain interest on the booking amount which he has paid to the Builder Co.

For the above-stated position, Bench relied on the decision of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana v. DLF Southern Homes (P) Ltd., 2020 SCC OnLine SC 667.

While reasoning out it’s decision, Commission stated that any impediments or problems that arise in Planning, Execution and Completion are builder’s responsibility, and not of the Consumer.

Hence, OP is liable to refund the amount which the Complainant paid to them for purchase of the flats in questions, along with appropriate interest on that amount.

However, Commission added that the rate of interest also cannot be arbitrary or whimsical, some reasonable and acceptable rationale has to be evident, subjectivity has to be minimised, a logical correlation has to be established.

Decision Summarised:

  • Refund to the Complainant the entire booking amount deposited by the Complainant till December 2018 alongwith interest @ 8% per annum from the date of deposit till the date of payment.
  • If the Complainant has paid any amount towards the loan account to the Financial Institutions, the same shall be refunded by the Builder Co. with the amount of interest actually paid to the Financial Institutions to the Complainant.
  • Builder Co. shall pay the entire balance loan amount disbursed to it alongwith the agreed rate of interest (Home Loan), as mentioned in the Tripartite Agreement to the Financial Institutions.

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V. K. Jain (Presiding Member) while addressing the present matter observed that,

A negligent act such as driving a motor cycle without taking the orientation desired by its owner can never be equated with an intentional self-injury if driving the vehicle result in an accident.

Personal Accident Insurance (Individual) Policy

Deceased had obtained the above-stated policy from the OP whereunder a sum of Rs 58,75,000 was payable by the insurer in case he was to die in an accident.

In an accident, the Late Mr Sunil Seth died after. Complainant lodged a claim in the above-referred policy. Surveyor concluded that the death of Sunil Seth took place in a road accident and hence the claim may be processed as per the terms and conditions of the policy and its coverage.

Though the Insurer repudiated the claim vide letter dated 20-07-2017, which reads as follows:

“The claim is repudiated as per Exception No. 5(a) of the policy which stands as “The Company shall not be liable under this policy for Payment of compensation in respect of Death, Injury or Disablement of the Insured from Intentional self-injury.”

On being aggrieved with the repudiation of the claim, the complainant approached the Commission.

Pecuniary Jurisdiction

OP resisted the complaint stating that the Commission lacked pecuniary jurisdiction to entertain the consumer complaint.

In accordance with Section 21 of the Consumer Protection Act, 1986, the Commission has pecuniary jurisdiction to entertain the consumer complaint where the value of the goods or services and the compensation claimed by the complainant exceeded Rs 1,00,00,000.

Commission did have requisite pecuniary jurisdiction to entertain the consumer complaint.

Further, the Commission opined that in no case, whatsoever, an insurer can be asked to pay any amount beyond the sum insured to the complainant. Whether any compensation, over and above, the sum insured should be awarded in a given case or not would depend upon the facts and circumstances of the individual case.

Therefore, it would be difficult to say that merely because the sum insured was only Rs 58,75,000 this Commission would not have pecuniary jurisdiction to entertain the complaint.

In view of the Supreme Court decision in Galada Power and Telecommunication Ltd. v. United India Insurance Company Ltd., (2016) 14 SCC 161, the insurer cannot be allowed to contest the consumer complaint beyond the ground on which the claim has been repudiated.

According to the repudiation letter, the claim was repudiated solely on the ground that Eagle Rider who had given the motorcycle to its pillion rider Neeraj Sethi on hire had advised the person driving the motorcycle to undergo an orientation and the decease did not go such orientation, hence this was a case of intentional self-injury.”

The use of the term ‘intentional self-injury’ in the insurance policy would mean that the person who suffered the injury must have wanted such an injury caused to him.

Ordinarily, this would happen in a case where a person either wants to commit suicide or he wants to cause injury to himself.

A person driving a high-end motorcycle without taking the orientation which the owner of the vehicle wants to be taken by the driver of the vehicle may be said to be negligent if he drives the vehicle without such an orientation, but it can never be said that his intention behind driving such a motorcycle without orientation, desired by its owner, was to cause injury to himself.

Hence, the present case was not covered under exception no. 5(a) of the policy.

OP shall pay a sum of Rs 58,75,000 to the complainant along with compensation in form of simple interest on that amount @ 8% p.a. w.e.f. 6 months from the date of lodgement of the claim till the date of payment. Rs 50,000 as cost of litigation to be paid by the OP. [Mala Sahni Seth v. New India Assurance Co. Ltd., 2020 SCC OnLine NCDRC 461, decided on 08-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member), upheld the State Commission’s Majority Order with regard to alleged medical negligence.

The instant revision petition was filed against the Order by the U.P. State Consumer Disputes Redressal Commission, Lucknow.

Complainant had visited the SS Hospital, Varanasi (OP 1) for pain in his left knee. OP 2 examined the patient and suggested Arthroscopic removal of the loose bodies. Complainant alleged that instead of Arthroscopy, OP 2 performed an open operation. Another X-Ray was taken, wherein it was found that the loose bodies were still present.

Later, the complainant underwent the Arthroscopy procedure at Mumbai by the hands of Dr Anant Joshi and gradually his left knee started functioning normally.

What was the complainant aggrieved of?

Aggrieved by the careless and negligent treatment of the OPs, the complainant filed the consumer complaint before the District Forum.

The District Forum allowed the complaint and ordered OPs to pay compensation of Rs 2,30,000 jointly and severally to the complainant.

Further, on an appeal being filed before the State Commission, OP’s were ordered to pay compensation of Rs 4,37,965 by the minority order but the majority order allowed the appeal and set aside the District Forum’s Order.

Again on being aggrieved by the State Commission’s Order, the instant revision petition was filed.

Analysis & Decision

Bench stated that it is an admitted fact that Dr S.C. Goel preferred open operation during the time of procedure instead of Arthroscopy.

As per the operative notes, it was the case of degenerative changes in the left knee joint and the four loose bodies were seen during Arthroscopy and their sizes were 1.5, 1.25, 1 & 1 cm. A large body of more than 5 mm size is difficult to be removed by Arthroscopy. Therefore, the Opposite Party No. 2 preferred open surgery. Moreover, admittedly, the patient before the operation was informed that if the Arthroscopy was not successful, open surgery would be done.

Hence, in view of the above, nothing amounts to negligence in the present matter.

The commission relied on the Supreme Court’s decision in Jacob Mathew, (2005) 6 SCC 1 wherein it was held that,

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

Coram held that Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation.

A medical error is only considered “negligent” if the healthcare practitioner has failed to take “reasonable care”.

It was noted in the present case through the medical records of the patient that it was the patient’s misconception that despite the advice of Arthroscopy,  OP 2 performed open surgery.

Hence, the State Commission’s Order had no jurisdictional error, or a legal principle ignored or miscarriage of justice. [Anil Kumar Gupta v. Banaras Hindu University, 2020 SCC OnLine NCDRC 462, decided on 05-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member), addressed a complaint wherein a person who had sent a cheque through a courier service was lost and he claimed compensation of the same amount as was mentioned in the cheque as the amount was also credited.

State Commissions Order has been challenged in the present revision petition which partly allowed the Opposite Party against the District Commission’s Order.

What transpired the present case?

Complainant had sent a packet containing account payee cheque through OP [Trackon Couriers (P) Ltd.], which was not delivered to the addressee. However, the cheque amount was credited from the complainant’s account.

Complainant in view of the above alleged that this happened due to the negligent act of OP, which resulted in the loss of Rs 88,500 to the complainant.

What did the State Commission Order?

“We have heard the learned counsel for the parties and have also gone through the record. It is evident from the affidavits and other documentary evidence produced by the OP-appellant that the complainant had not declared the contents of the packet nor did he get the same insured for Rs. 88500/. for which the account payee cheque is alleged to have been kept in the packet. Further, the terms and conditions of the courier service clearly provided that no such contents like blank or account payee cheque shall be sent through the courier.”

“Further, the complainant did not implead either the bank or the person who actually got the account payee cheque credited in favour as party to the complaint, nor did he file any affidavit to that effect. Therefore, the appellant courier company cannot be held liable for the ultimate loss suffered by the complainant, as its liability is only limited to the extent of the amount of fee charged from the complainant. In the present case, the complainant has himself said in the opening para of his complaint that he paid Rs. 20/- in cash while getting the courier booked. Therefore, at best the appellant -OP is liable to pay four times the amount paid by the complainant as mentioned in the Terms and Conditions.”

Decision of the Commission

Coram stated that the State Commission correctly invoked the condition 2 of Termas and Conditions of the courier service which provided that,

“…items such as currency, bearer cheque, etc. would not be items loss of which would make the company liable to pay any claim arising therefrom.”

The above-stated terms and conditions are standard in nature and the complainant ought not to have sent the cheque through courier. And certainly not without a declaration and without taking insurance for the same. This was negligent on the part of the complainant. Op cannot be held accountable and liable for this.

It was also noted that an account payee cheque by law can only get credited to the account of the person named and to a different account only if it so endorsed. Therefore, if the account payee cheque got credited to a different account, it is this which has to be explained by the Bank, not by the OP.

Concluding, its decision, Commission stated that there was a deficiency in service in as much as the parcel was not delivered to the designated addressee, for which the courier has to compensate the complainant; however, this has to be as per terms and conditions of the contract. 

Hence, State Commission’s Order was affirmed. [Rikhab Jain v. Trackon Couriers (P) Ltd., Revision Petition No. 3354 of 2016, decided on 06-10-2020]

Case BriefsHigh Courts

Madras High Court: Abdul Quddhose, J., partly allowed an appeal that had been filed by the claimants seeking enhancement of compensation granted by the Motor Accident Claims Tribunal.

The Motor Accident Claims Tribunal under the impugned Award had directed the respondents to pay the Appellants/claimants a compensation of Rs 5,10,200 together with interest and cost for the death of Venkatesh as a result of an accident caused by a vehicle owned by the first respondent and insured with the second respondent. In the claim petition, the claimants had pleaded that the deceased was aged 28 years and was a businessman earning Rs 10,000 per month at the time of the accident but no documentary evidence was produced in support of the monthly income of the deceased, the Tribunal under the impugned Award had fixed the monthly income of the deceased on notional basis at Rs 3,300.

The Court while partly allowing the appeal enhanced the compensation stating Tribunal ought to have given due consideration to the year of the accident which happened in the year 2004 before assessing the notional monthly income of the deceased making it 4,500. Further, the Court relying on the Supreme Court judgment of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 stated that the Tribunal had not awarded any compensation towards loss of future prospects and loss of estate which the Appellants/claimants were legally entitled, it further reduced the deduction of personal expenses to 1/4th from 1/3rd calling it erroneous, further increasing the loss of consortium and funeral expenses in accordance with the judgment. Lastly, relying on the Supreme Court judgment of Sarla Verma v. DTC, (2009) 6 SCC 121 the Court held that Tribunal had erroneously adopted 18 multiplier instead of 17 while calculating the loss of dependency as correct multiplier to be adopted for a person aged 28 years was 17 multiplier and not 18. The Court however removed the compensation towards loss of love and affection to the Appellants/claimants which they were not entitled to as seen from the evidence available on record. The compensation awarded by the Tribunal under the impugned Award thus was enhanced from Rs 5,10,200 to Rs 10,33,900. [Lakshmi v. S. Rajashekar, 2020 SCC OnLine Mad 2647, decided on 29-09-2020]


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Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sujatha, E.S. Indiresh, JJ., allow the appeal, increasing amount of compensation as granted by the Motor Accident Claims Tribunal.

 Brief Facts

The husband of the appellant – claimant, while proceeding towards Beltangadi to adduce evidence before JMF II Court, met with an accident and thereby succumbed to the injuries caused. It is to be noted that the deceased was traveling in the vehicle as a passenger on a hire basis which had a permit of luxury taxi owned by Respondent 1. Further, the deceased was instituted at the position of a Senior Motor Inspector at the time of the said fateful incident drawing salary conducive to adequate means of living.

Under the claim for compensation before the Tribunal, the appellant-claimant sought for damages amounting Rs 65,00,000/- citing several reasons, along with interest from the respondents herein. However, compensation of Rs 15, 91, 968/- along with an interest of 6% only was sanctioned by the Tribunal. The present appeal is preferred for the enhancement of compensation amount with the revaluation of the interest rate. 

Issues

  1. Whether the impugned judgment and award passed by the Tribunal requires interference by this appeal?
  2. Whether the claimants are entitled to enhancement of compensation in this appeal?

Arguments for Appellant

Counsel for Appellant submitted that the Tribunal erred in taking the salary of the deceased as Rs 32, 541/- per month without considering income from agricultural proceeds. Further, the promotional benefits to be accrued by the deceased during his lifetime working in the transport department have not been taken into account by the Tribunal. Furthermore, the deduction of 50% towards personal expenses of the deceased finds no rationale and accordingly, sought for interference by the present appeal. Lastly, the Counsel submitted that the compensation awarded by the Tribunal is contrary to the law declared by the Supreme Court as well as the present Court under Section 166 of the Motor Vehicles Act.

Arguments for Respondent

Counsel for the Respondent insisted the compensation granted by the tribunal to be apt, proper and adequate in the given circumstances, requiring no interference by the present Court, whatsoever. 

Decision

The Court while allowing the appeal, ordered for an increase in compensation to Rs 23, 62, 552/- as against the compensation of Rs 15, 91, 968/- granted by the Tribunal. Moreover, referring to the judgment of Sarla Verma v. Delhi Transport Corporation, and National Insurance Company v. Pranay Sethi, (2017) 16 SCC 680, the Court revised the deductions made by the Tribunal.[D.S. Manjula v. Usha S Rao, Misc. Appeal No. 1211 of 2015 (MV), decided on 08-09-2020]

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., decided an appeal wherein the claim petition was rejected by the Motor Accident Tribunal on certain grounds.

FACTS

Deceased Baby was traveling in a jeep owned by respondent 1. It has been stated that the vehicles’ driver was driving at a high speed and in a negligent manner resulting in a violent dash to a tree.

In view of the above incident, the husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicle Act claiming Rs 5,00,000 towards compensation.

Insurance Company |Breach of Condition of Insurance Policy

Respondent 2 i.e the Insurance Company resisted the claim by filing a written statement on the grounds that the driver of the offending vehicle was not holding a valid motor driving license on the date of the accident and the jeep was insured for private use but it was used for commercial purpose in breach of a condition of the Insurance policy.

Since the claim petition was rejected by the tribunal, the present appeal was filed.

Counsel for the appellants, P.R. Agrawal; K.B Zinjarde, Counsel for the legal representatives of respondent 1 owner of the offending vehicle and S.K. Pardhy, Counsel for the Insurance Company.

Analysis and Decision

Bench on perusal of the grounds of rejection by the tribunal examined the correctness and legality of the same.

Ground 1:

Claim is based on falsity

Registration of births, those who born in remote areas like the deceased Baby or the appellant 1, have a lesser likelihood of registration of their birth and possessing a birth certificate.

In absence of schools in remote tribal areas till the recent past, it was not possible to take education for many. Hence no school record in respect of date of birth is also available.

Therefore, there is a practice of mentioning the approximate age.

The Court found no ill-intention of the claimants in mentioning the age of the deceased as 38 years.

Hence, the rejection of the claim petition by the Tribunal on the ground that the case of the claimant is based on falsity is erroneous.

Ground 2:

Husband of the deceased Baby, being an earning member, cannot claim compensation for death of his wife in the accident

The deceased was a housewife, therefore, claimants have lost personal care and attention given by the deceased.

A housewife holds the family together. She is a pillar support for her husband, a guiding light for her child/children and harbor for the family’s elderly.

In regard to the importance of the role of a housewife, High Court referred to the decision of the Supreme Court in Arun Kumar Agrawal v. National Insurance Company Ltd., (2010) 9 SCC 218.

Further, the Court stated that,

“…the loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife and further for loss of gratuitous and the multifarious services rendered by the housewives for managing the entire family.”

Hence, the claim of the claimants on the ground that the husband and the major sons are not entitled to claim compensation on the death of the wife or mother, appears to be in ignorance of the well-established principals of law.

In Court’s opinion, the deceased being a woman and mother of two children would have also contributed her physical labour for the maintenance of the household and also taking care of her children. Therefore, being a labourer and maintaining her family, her daily income should be fixed at Rs 200 per day and Rs 6000 per month.

Ground 3:

The private vehicle was used for commercial purposes in breach of conditions of the Insurance Policy moreover the driver was not holding a valid licence.

In view of the Supreme Court decision in S. Iyyapan v. United India Insurance Company Ltd., 2013 (6) Mh. L.J. 1 and this Court’s decision in Dnyaneshwar v. Raju, 2020(1) Mah. Law Journal 377, wherein it was held that it is the vicarious liability of the owner of the vehicle to pay compensation even if due to rash and negligent driving of the driver, the accident had occurred.

Thus, in view of the above-stated position, ground 3 was also rejected.

DECISION

High Court held that it is the statutory duty of the Insurance Company to pay the amount of compensation even in breach of a policy condition.

Court directed the Insurance Company to pay the compensation amount in three months.

In view of the aforesaid terms, the appeal was allowed. [Rambhau v. Shivlal, 2020 SCC OnLine Bom 935, decided on 17-09-2020]

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while addressing a petition, observed that,

“An impartial investigation is the basic requirement for any investigation. A fair investigation is also a part of constitutional right guaranteed under Articles 20 & 21 of the Constitution of India.”

“Majority of people are now hailing the police encounters and majority of people are now opting for other modes of redresses, like Kangaroo Courts, etc.”

Respondent had filed a final report against the Appellant for the offence under Sections 341, 302 and 394 r/w 397 of Penal Code, 1860.

Trial Court did not find the appellant guilty for the offence under Section 394 r/w 397 IPC but found him guilty for the offence under Section 341 and 304 (ii) IPC.

Property Dispute

Deceased Senthil had a property dispute with the family of one Ponnusamy.

Ponnusamy’s brothers Udayar and Jeyaraman; and one Sabarimalai surrounded the deceased was stabbed.

Mohideen Basha, Counsel for the appellant and Robinson, Government Advocate [Crl Side].

Decision

Bench noted certain lapses in the investigation of the present case.

High Court called the CD file to find out the manner in which the investigation was conducted.

Further, the Court stated that the investigation agency acted in a casual manner, so as to bury the truth and the real accused, who committed the brutal murder on a poor man escape from the clutches of law.

Hence, the appeal was allowed and the conviction and sentence imposed on the appellant were set aside.

Supreme Court’s decision in Popular Muthiah v. State, (2006) 7 SCC 296, was also cited.

The investigation must be unbiased, honest, just and in accordance with the law. The purpose of the investigation is to bring out the truth of the case before the Court of law.

In the present matter, it has been obliterated and the investigation has proceeded in a causal manner as to the whims and fancies of the investigation agency.

Court added that,

“1000 culprits can escape, but, one innocent person should not be punished.”

The available materials, in this case, expose the perfunctory and designed investigation and therefore, this Court is left with no other option except to interfere with the judgment of conviction passed by the trial Court.

A Crime is a public wrong, which involves the public rights of the community as a whole and also harmful to the society in general.

Criminal Justice System

It was also stated that the responsibility of the investigation agency in the criminal justice system plays a major role and they are, in fact, the kingpins in the criminal investigation system.

We are taking pride that the Tamil Nadu State Police is one of the best investigation agencies in the World and it is because of the exemplary service rendered by our police officers.

We cannot allow this reputation of the agency to be eroded by some irresponsible officers.

— Madras High Court

Further, the High Court also observed that the Tamil Nadu Police Reforms Act was enacted in the year 2013, yet it has not been implemented in letter and spirit.

Investigation

An investigation is not a mechanical work, which can be conducted in a casual manner, it requires expertise, knowledge and technical skills to collect the materials, which could unearth the truth.

Concluding the decision, Court stated that the accused can be declared innocents and can be set at liberty, either on the merits of the case or on the lapses committed by the Department. If it is on the lapses committed by the Department, steps should be taken on the side of the Department to avoid the same.

An innocent person does not deserve to suffer the turmoil of long drawn litigation, spanning over a decade or more.

Court placed certain queries for the State and DGP to give their response which are as follows:

i) How the investigation officers are equipped with the knowledge and expertise in conducting a criminal investigation and how it is ensured by the superior officials?

ii) Whether any disciplinary proceedings have been initiated as against the officials, who are responsible for acquittal because of their perfunctory investigation?

iii) How the superior officers, namely, the Deputy Superintendent of Police, Additional Superintendent of Police, Superintendent of Police, Deputy Inspector General of Police and Inspector General of Police are monitoring the investigation?

iv) In the case of lapses in the investigation, whether the investigation officer alone is responsible or the higher officials, who are expected to monitor the investigation, are also responsible?

v) The steps taken by the Government in fully implementing the decision of the Supreme Court in Prakash Singh v. Union of India, (2006) 8 SCC 1 and the Tamil Nadu Police Reforms Act, 2013, in letter and spirit, in all the police stations.

vi) The steps taken by the Government in implementing the decision of the Supreme Court in State of Gujarat v. Kishanbhai, (2014) 5 SCC 108.

vii) The steps taken by the Government and the Department, to implement the amendments made to Sections 161, 164 and 275 CrPC?

viii) The steps taken by the Government and the Department, to implement the amendments to Sections 161, 164 and 275 CrPC, pursuant to the direction of the Division Bench of this Court in Satheesh Kumar’s case (supra).

ix) Whether the Circulars issued by the Director-General of Police then and there are strictly complied with? In the event of non-compliance, whether any disciplinary proceedings are contemplated against them and if so, the details thereof.

x) Whether the circulars issued by the Director-General of Police are readily available in all the police stations, in the form of a manual and whether they are available in the common platform, such as websites, so that, it can be accessed by the general public?

xi) The existing mechanism to enhance the quality of investigation among the investigation officers and the ways and means to enhance the same as to the present-day scientific advancements.

xii) The possibility of issuing a checklist including the steps to be carried out by the investigation officers, step by step, depending upon the nature of crime and the applicability and training using advanced scientific techniques, like fixing the accused using call details and tower location, etc., and how such collected details be marked/produced before the Court.

xiii) Why not compensation of Rs 10,00,000 be awarded to the victim in this case, who suffered because of the perfunctory investigation, which could be recovered from the investigation officers, namely, PW 12, Thiru N. Muthukumar; and PW 14, Thiru Poun and the Deputy Superintendent of Police, Sivagangai concerned?

xiv) The Secretary to Government, Home, Excise and Prohibition Department; and the Director-General of Police, Chennai, shall give their comments/proposal as to the present case and the further course of action, if any, in view of the fact that ten years have lapsed since the commission of offence.

xv) Ways and means to address the issue raised & to effectively overcome the same.

xvi) Any other suggestions to avoid the acquittals due to such perfunctory investigations, in future, so as to regain the losing glory of the Department.

The present matter listed for 22-09-2020. [Balamurugan v. State, 2020 SCC OnLine Mad 2165, decided on 08-09-2020]

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., while determining the compensation in the cases of accident, observed that,

“…job of Homemaker can never be compared with employee or employment and the importance and the values are also to be considered by the Courts, while assessing the compensation.”

Claimant who is the appellant has sought enhancement of compensation in the present appeal.

Claimant sought who sustained grievous injuries resulted in permanent disability.  A Bus had hit the appellant/claimant when she was standing near the bus stand to catch a bus, causing her grievous injuries in the back along with other serious injuries.

Permanent Disability

Perusal of the nature of injuries revealed that the appellant/ claimant sustained not only grievous injuries but resulted in permanent disability and she is continuously taking treatment for that.

Tribunal concluded that due to the rash and negligent driving of the bus driver, the grievous injuries were caused to the appellant.

A monthly income of the appellant was fixed as Rs 4,500 ad accordingly a sum of Rs 4, 86, 000 was granted towards loss of income by the Tribunal.

Analysis & Decision

Court noted that the appellant/claimant is unable to support the family and the husband and children have to take care of her. Undoubtedly, no document has been produced to establish employment as well as the income of the appellant/claimant.

 “…as a woman at home is the Homemaker and for this purpose, the fixation of income for grant of compensation, assessment can be made considering the appellant/claimant as to the Homemaker.”

It happens the claimants are advised either by the relatives, friends, or counsels to say as if they are employed and earning and in order to get compensation, the claimants are ill-advised to provide such facts before the Tribunal in their claim petitions.

In the present matter, there is no dispute between the parties that the appellant is a Homemaker with husband and children. Thus, the tribunal ought to have drawn factual inference in the absence of any material to establish employment and income.

High Court found the amount of compensation fixed to be inadequate and improper.

Bench also emphasized on the importance of “Homemakers”. Thus, the importance, value as well as the materialistic factors are to be considered, while fixing the compensation as far as the Homemakers are concerned.

Keeping in view the amount of fairness to be adopted in the cases of Homemakers, we cannot forget that the Homemakers are the Nation Builders.

If the Homemaker died, the impact would be unmeasurable and the family will become scattered. It would be very difficult to cope with the family.

Therefore, homemakers are standing on a higher pedestal than that of the earning member in a family. Thus, mitigating factors, family status, the income of the husband and other aspects are to be considered while fixing the compensation for Homemakers.

Bench stated that it has no hesitation in arriving at the conclusion that the permanent disability caused to the appellant/claimant would affect not only her family life but also a great loss to the entire family.

Tribunal has mechanically on the basis of proof for employment as well as income decided the compensation without taking the aspects in the right perspective.

Once the fact of an accident is established and the Insurance Policy Coverage is not disputed and negligence is decided, then the claimants are entitled to ‘Just Compensation’.

Enhancement of Compensation

Hence, it was held that the compensation of Rs 4,86,000 awarded by the Tribunal towards loss of income is to be modified. This apart, the compensation granted under the head of ‘Pain and Sufferings’ is also very less, which is to be enhanced as the appellant/claimant has suffered continuously, and therefore, the enhancement is to be granted to the appellant/claimant.

Total compensation of Rs 14,07,000 with an interest at the rate of 7.5% per annum is to be granted to the appellant/claimant. [Bhuvaneswari v. Mani, 2020 SCC OnLine Mad 2163, decided on 01-09-2020]

Case BriefsHigh Courts

Bombay High Court: B.U. Debadwar, J., observed the difference between Sections 28 and 34 of the Land Acquisition Act, 1894 in determining the award to be granted to a person, in the absence of an exact date of possession.

Respondent–claimant was the exclusive owner in possession of the lands situated to village leet, Taluka Bhoom, Osmanabad.

Appellant-State acquired two lands for the Dokewadi Medium Project. Preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 13-04-1990. Possession of both the lands was also taken in the same year.

Award

On 31-12-1994, Special Land Acquisition Officer, after following due process, passed the award thereby determining the compensation at the rate of 15,000 per acre and separately awarded compensation as well.

Section 18 of the Land Acquisition Act

Reference application was moved under Section 18 of the Land Acquisition Act, 1894 for enhancement of compensation after accepting the award under protest.

Civil Judge, Senior Division, Osmanabad allowed the reference partly and enhanced the compensation to Rs 30,000 per acre with statutory benefits.

Appellant–State preferred the present appeal on being aggrieved by the aforestated judgment and award passed by the Joint Civil Judge, Osmanabad and respondent — claimant filed a cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908.

Analysis and Decision

On perusal of the impugned Judgment, Court noted that Joint Civil Judge, Senior Division, Osmanabad treated the acquired lands as fertile ‘jirayat lands’ and awarded compensation at the rate of Rs 30,000 per acre.

The Joint Civil Judge appeared to have discarded the evidence of claimant on the aspect of nature of acquired land i.e. ‘bagayat land’, only for the reason that it is not supported by pleadings raised in reference application.

It is pertinent to note that State has awarded separate compensation of various trees, well and taal (dike) situated in acquired land, to the respondent – claimant.

When the appellant – State has awarded separate compensation of well, the question of denying the existence of well in acquired land does not arise.

Having regard to the area of land covered by sale instance proved by the respondent — claimant, area of lands under acquisition by owned by him, nature of acquired lands, i.e. seasonally irrigated lands, source of irrigation, Court held that the compensation determined by the reference Court is not adequate and just compensation.

Further, the Court added that the compensation needs to be raised to Rs 50,000 per acre from Rs 30,000 per acre. Hence, the respondent-claimant is entitled to compensation at the rate of Rs 50,000 per acre.

In the absence of the date of taking possession of lands under acquisition, it is difficult to know whether possession of lands under acquisition was taken prior to publication of the preliminary notification under Section 4(1) of the Land Acquisition Act, 1894, or after the publication of the same.

Though it is clear that possession of acquired lands was taken prior to the passing of award i.e. prior to 31-12-1994.

Section 16 of the Land Acquisition Act, 1894 deals with the power to take possession. According to this provision, when the Collector has made an award and under Section 11 he may take the possession of the land, which shall thereupon absolutely vests in the Government, free from encumbrances.

Whereas, Section 17 of the Land Acquisition Act, 1894, speaks about special powers in case of urgency. According to this provision, in case of urgency, wherever appropriate Government directs the Collector, though no such award has been made, may, on expiration from 15 days from the publication of notice mentioned in Section 9 Sub-Section (1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government free from encumbrances.

In the present matter, there is absolutely no evidence about taking possession of lands under acquisition by invoking special powers contemplated under Section 17 of the Land Acquisition Act, 1894.

In view of the decision of State of Maharashtra v. Kailash Shiva Rangari,2016 SCC OnLine Bom 2236 the respondent-claimant would be entitled to interest under Section 34 of the Land Acquisition Act, 1894 from the date of passing of an award under Section 11 of the Land Acquisition Act, 1894 i.e. 31-12-1994 and not from 1990 when possession of acquired lands were taken.

Further, the Court added that the Section under which interest is awarded is neither mentioned in the body of the judgment nor in the operative part.

However, looking to the operative part in its entirety it appears that interest awarded in clause (4) is awarded either under Section 28 or Section 34 of the Land Acquisition Act, 1894 and interest awarded in clause (6) is in the form of rental compensation.

Hence, the claimant is entitled to interest under both Sections of the Land Acquisition Act, 1894 i.e. Section 28 and Section 34 and that has to be awarded from the date of award till realisation of the compensation amount.

Therefore, Joint Civil Judge in Clause 96 of the operative part of the impugned judgment committed a mistake in awarding rental compensation in the form of interest covered under Sections 28 and 34 of the Land Acquisition Act, 1894.

Court partly allowed the appeal and cross objection in the present matter. [State of Maharashtra v. Laxman, 2020 SCC OnLine Bom 894, decided on 04-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: A Division Bench of Justice Rajendra Menon (Chairperson) and Lt. Gen Phillip Campose (Member) A, allowed the application.

In the instant case, the respondents has prayed for revision of pension in accordance with the last rank held by him before retirement as a Junior Warrant Officer vide Government circular dated 09-02-2001 which states that ten months continuous service in the last rank is not required for grant of pension in such rank.

Counsel for the petitioners, Manoj Kumar Gupta has relied on the judgment titled Pramod Kumar Singh v. Union of India (O.A. 1166 of 2017) and Ashok Kumar Tanwar v. Union of India (O.A. of 882 of 2016) which waived on 10 months pension. He further submitted that pension cannot be deprived to an individual to a rank for which he has already rendered service and earned pension in the rank of JWO and is entitled for the same.

Counsel for the respondents, Avdhesh Kumar Singh submitted that holding the last rank before retirement for calculating pension has been dispensed with and the present calculation to give pension for the lower rank is financially beneficial.

After hearing both sides, the Tribunal relied on the judgment titled P. Gopalakrishnan v. Union of India (O.A. No. of 62 of 2014) and held that after going through various circulars presented it was found that the calculation made for the respondents was detrimental. He further observed that pension is a statutory right and the respondents cannot be denied the entitlement of the same. It was directed to recalculate the pension based on the relied judgment.

In view of the above, the application was allowed.[JWO Meghnath Majumdar v. Union of India, 2020 SCC OnLine AFT 1601, decided on 05-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Attau Rahman Masoodi, J., allowed the appeal and modified the impugned order by applying the principle of res judicata.

The factual matrix of the case is such that the present appeal has arisen out of the judgment and award dated 16-02-2016 delivered by Motor Accident Claims Tribunal (MACT) Lucknow in Claim Petition No. 275 of 2007 whereby compensation along with interest was awarded to the claimant who suffered serious eye injury. The accident involved two vehicles i.e., a truck and a car whereby the truck was insured by the appellant.

The correctness of the award is in question whereby the entire liability has been imposed on the appellant although the case was that of composite negligence and the tribunal ought to have considered the judgment delivered by MACT Gonda in the same matter. The appellant has also questioned the multiplier applied for calculation of the claim.

A plea of finality on the aspect of proportionate liability was advanced by the counsel for the appellant, Bhanu Prakash Dubey and Kartikey Dubey in the subsequent proceedings before MACT Lucknow on the basis of the judgment delivered by MACT Gonda. It was further submitted that since the judgment rendered in the earlier proceedings concerns the same accident, therefore, this issue too was liable to be decided in the manner already settled between the parties.

It was contended by Alka Dubey, counsel for the respondent that MACT Lucknow has not committed any error since it has exclusive jurisdiction and is not bound by Section 11 CPC.

The Court referred to Section 169 of Motor Vehicle Act, 1988 and Rules 209, 215, 220 of U.P. Motor Vehicle Rules, 1998 while deliberating over the present matter and observed that that the MACT is obligated to frame the issues on which the right decision of the claim appears to depend.

The Court relied on the judgment titled Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228 and held that the findings of MACT Lucknow are not justifiable as it should have considered the objections of the appellant and weighed the same in accordance with law. The principle of res judicata was applicable between the parties and the same should have been applied on the aspect of proportional liability of both the parties, accordant with the earlier judgment/award.

Thus, the Court modified the award rendered by MACT Lucknow by fixing the liability to pay compensation equally to both the appellant and respondent. With respect to the appellant’s contention regarding multiplier, the Court accepted the same and held that MACT Lucknow ought to have applied the multiplier as 16 based on the age of the claimant.

In view of the above, the impugned judgment/award was modified to the aforesaid extent and the appeal was accordingly disposed of. [New India Assurance Co. Ltd. v. Vikas Sethi, 2020 SCC OnLine All 921, decided on 31-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram of Justice Adarsh Kumar Goel (Chairperson) and Justice S.P. Wangdi (Judicial Member) and Dr Nagin Nanda (Expert Member), while addressing a matter reiterated that,

There is no absolute right to extract groundwater for commercial purposes. If anyone is found extracting groundwater, it is per se a criminal offence under the Environment (Protection) Act, 1986.

Illegal Extraction of Groundwater

Tribunal sought a report from the State Pollution Control Board with regard to the allegation of illegal extraction of groundwater and discharge of polluted water with dyes and chemicals into the drain by the National Wollen and finishers.

State PCB filed a report wherein it was noted that Regional Director, CGWB, Chandigarh was directed to take action and levy environmental compensation on National Wollen and Finishers for extracting underground water without CGWA permission, as per the report of CPCB in-house Committee on Methodology of assessing Environmental Compensation and Action Plan for its utilization of Fund Assessed.

Further, the report also stated that the consent to establish under the Water Act and Air Act was granted on 03-09-2012.

In the Tribunal’s decision of Shailesh Singh v. Hotel Holiday Regency, OA No. 176 of 2015, it was held that,

“…groundwater extraction has to be regulated having regard to the safety of level of groundwater so that water bodies and e-flow of rivers is not affected.”

There is no absolute right to extract ground water for commercial purpose. If anyone is found extracting ground water, it is per se a criminal offence under the Environment (Protection) Act, 1986.

Hence, the tribunal held that National Wollen and Finishers has been found to be extracting groundwater, therefore, State PCB must stop such extraction by coercive means and recover compensation for such illegal drawal for the period for which such drawal took place up to five years from the date of filing of the application before this Tribunal.

Adding to its decision, the tribunal also stated that, there is also a violation of Consent terms under the Water and Air Acts which can certainly be enforced by the PCB, in view of the failure of CGWB to take action.

In view of the above, the application was disposed of. [Raj Kumar Singal v. State of Haryana, 2020 SCC OnLine NGT 220, decided on 05-08-2020]

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., addressed three different petitions between the same parties arising out of the award passed by Arbitral Tribunal, out of which, first petition was rejected, the second was passed and third stayed.

GMR and NHAI were under a concession agreement to build a six-lane, 555 km Kishangarh-Udaipur-Ahmedabad Highway, which was terminated by GMR on the ground that there had been a “change in law”, during the period of the agreement.

GMR claimed that it was entitled to compensation, under Clauses 41.1 and 41.3 of the Concession Agreement. The learned Arbitral Tribunal held that there was a “change in law” and that, GMR was entitled to compensation under Clauses 41.1 and 41.3. The majority award, however, permitted NHAI to take a fresh decision, on the claims of GMR, and assess the compensation to which it would be entitled. While the majority Award directed GMR to establish, before NHAI, its entitlement to compensation, under Clause 41.1 and 41.3 of the Concession Agreement, the dissenting Award(minority) opined that, instead of allowing NHAI to adjudicate thereon, the exercise ought to be delegated to an independent authority, such as a reputed firm of Chartered Accountants, or the like. The petitions, O.M.P. (COMM.) 426/2020, and O.M.P. (COMM.) 425/2020, were filed by NHAI and  GMR respectively and were preferred under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the award by the Tribunal. O.M.P. (I) (COMM.) 92/2020, was filed by GMR under Section 9 of Arbitration and Conciliation Act, 1996 essentially for the interim stay of operation of a letter demanding premium and, further, restraining GMR from taking any coercive steps, under the Concession Agreement.

NHAI claimed to be aggrieved by the decision, of the Arbitral Tribunal, holding GMR to be entitled to compensation, and contended, in its petition [O.M.P. (COMM.) 426/2020] that GMR was not entitled to any compensation on the ground of “change in law”. GMR challenged [in O.M.P. (COMM.) 425/2020] the majority Award, to the extent, it delegated the decision-making power, qua the claim, of GMR, to compensation, to NHAI. In other words, GMR sought to contend that the minority Award of Nayar, J., ought to be accepted.

The Court first decided the petition,O.M.P. (COMM.) 426/2020, and found the Arbitral Tribunal’s Judgment to be in order. Court found that the tribunal’s decision that change of circumstance did result in “change of law” under Clause 48 of the Concession Agreement, the claim of GMR had to be assessed under Clauses 48.1 and 48.3 and GMR had to establish the “financial burden” to claim this compensation.

Therefore, Court disposed of this petition. In O.M.P. (COMM.) 426/2020, the court sided with the minority judgment of the Arbitral tribunal and assigned a new arbitrator who would be taking up the task from where the learned Arbitral Tribunal passed its Award. The Court decided that the Sole Arbitrator would have a time of six months from the date of presentation GMR’s claims for compensation. Therefore, the petition was accepted. The remaining petition, O.M.P. (I) (COMM) 92/2020, was on the issue of the premium to be paid to NHAI, which was stayed by the court in the “the interests of justice”.  Therefore, the third petition stayed.[GMR Hyderabad Vijayawada Expressways (P) Ltd. v. NHAI, 2020 SCC OnLine Del 923, decided on 4-08-2020].

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Prem Narain (Presiding Member) upheld the State Commission’s order partly and confirmed that the promotional scheme by Mc Donalds — ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’  was an unfair trade practice.

Present revision petition was filed against the Delhi State Consumer Disputes Redressal Commission’s decision.

Facts

Complainant in the year 2005 had participated in OP’s widely published scheme ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’ by placing two separate orders worth Rs 81.

It was alleged that the complainant did not find any terms and conditions on the notice board of OP, instead found a leaflet of another scheme ‘McDonald’s Ghar Bulao Sab Lucky Ban Jao !’.

Further, on OP’s manager’s advice, complainant had sent two SMS on 8888 giving the coupon nos., for which Rs 3 per SMS were charged. 

In view of the above stated facts, complainant alleged that OP indulged into unfair trade practices by not giving the assured prizes as per the scheme.

Moreover, the details of the entire scheme with terms and conditions and the result of the winners were also concealed from the participating customers, therefore, the complainant filed a consumer complaint before the District Forum praying to declare the scheme as unfair trade practice and a direction was sought against OP to disclose the entire scheme, winners of the prizes.

Refund of the amount collected in lieu of premium SMS charges levied as well as refund of Rs 81 and Rs 6 for SMS with cost and compensation was also demanded.

District Consumer Disputes Redressal Forum had awarded Rs 10,000 as compensation and Rs 2000 as cost to the complainant.

Aggrieved by the above Order, complainant filed the present revision petition.

Decision

Bench stated that the scheme was run by the OP to promote the sale of products of the OP by giving various offers to consumers of the OP.

Supreme Court decision of Lourdes Society Snehanjali Girls Hostel v. H&R Johnson (India) Ltd. , (2016) 8 SCC 286, was also cited, wherein it was held that,

“The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

Complainant failed to file any proof with regard to the collection of SMS charges by the OP or OP’s agreement with the Telecom Company/Service provider on sharing of SMS charges.

“It can only be presumed that the OP facilitating income of the Telecom Company/ service provider by encouraging the customers of Telecom company/ service provider to make use of the services of commercial SMS, will definitely get some benefits out of the increased earnings of the Telecom company/ service provider.”

However, the Commission stated that without any proof of the above stated, State Commission’s award to the complainant cannot be sustained.

Another observation in view of the facts stated, OP’s scheme was unfair trade practice as established by the fora below and hence complainant and other customers subjected to the same scheme need relief.

While partly allowing the revision petition, Commission allowed compensation of Rs 30,000 to be paid to the complainant and an amount of Rs 70,000 to be deposited with Consumer Welfare Fund. [Connaught Plaza Restaurants Ltd. v. Kapil Mitra, Revision Petition No. 2731 of 2016, decided on 04-08-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal(NGT) : The coram of Justice Adarsh Kumar Goel, Chairperson and Justice S.P. Wangdi, Judicial Member and Dr Nagin Nanda, Expert Member, dismissed the application for modification of the order of tribunal and ordered the party to make the deposit payment immediately.

On 3-06-2020, the chemical factory of Yashyashvi Rasayan Pvt. Ltd. encountered a massive blast when a fire lit up in the storage tank of the factory. Eight workers were killed and at least 50 injured. About 4800 inhabitants of the nearby villages had to be moved to safer place on account of the incident. An NGO from Surat, Aryavart Foundation, filed an application against the company before NGT, where the tribunal assessed the total amount to be Rs 25 Crores on account of compensation to the families of the dead victims, injured victims and the ones who had to be displaced. The company moved to the Supreme Court against the order of the tribunal. The Supreme Court, on 22-06-2020, after hearing both the sides, decided that company should approach NGT for modification of order and gave the company 10 days to make the payments omitting the charges for displaced persons as they had to be further decided.

The main ground for seeking modification of order of the Tribunal was that the persons displaced were brought back to their homes on the very same day, no damage was caused to their person or property and there was no permanent migration. Therefore, the company’s prayer was to recall direction to pay the remaining amount of Rs 22.075 crores.

Bench decided that they did not find any merit in the prayer of the applicant. According to them, the impugned order was passed after preliminary verification of facts and after notice to the applicant and not just media report alone. Further, on the issue of displacement, the bench laid emphasis on the impact which the blast had made on the environment and the people whose faced the trauma said, “Displacement was at large scale creating anxiety, fear, trauma, and misery. Some families may have minor children or senior citizens, females who certainly are bound to greatly suffer by such large scale and sudden displacement from their houses. Exact damage is to be fully ascertained but even as per conservative estimate, the amount of compensation of Rs 25,000/- to each displaced person cannot, in our view, be held to be excessive, even on further consideration. There is no golden scale to measure such loss and a reasonable estimate has to be the basis.” On the gravity of compensation to be paid within prescribed time, the tribunal emphasised ,“It is against interest of justice to further delay deposit and disbursement of the amount to the victims of the tragedy as almost two months have passed from the date of the incident.” Therefore, the court dismissed the application for modification.[Aryavart Foundation v. Yashashvi Rasayan (P) Ltd.  ,I.A. No. 237 of 2020, decided on 30-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice S. P. Wangdi (Judicial Member) and Dr Satyawan Singh Garbyal (Expert Member), reaffirmed the decision passed by the tribunal in the case of LG Polymer Chemical Plant, In Re,  2020 SCC OnLine NGT 129, which observed that safety of citizens and the environment are of great concern calling for strict action against failure at all levels and for strengthening the regulatory mechanism, holding Oil India Limited liable under the principle of absolute liability to pay compensation of Rs 25 crores for the oil well blow-out in Assam.

Background

The issue pertains to a claim for compensation to the victims and to the environment on account of damage in an incident of oil well blow-out on 27-05-2020 at Baghjan in the Tinsukia District of Assam. The oil well released propane, methane, propylene which caused great damage to flora and fauna present around and also spread into the Dibru-Saikhowa National Park which is a home to a huge population of wildlife in it. It also affected the people living around the area as 1610 families were displaced due to the gas leak.

Issue

Whether the direction of the Tribunal in its earlier order for compensation of Rs 25 Crores to District Magistrate by Oil India Limited is required or not?

Decision

  • The Tribunal committee ordered for immediate deposit of Rs 25 crore to the District Magistrate to meet the liability for compensation to the victims and the cost of restoration of the environment.
  • On the issue of the other funds set up by Oil India Limited for the rehabilitation of the victims and restitution of the environment, the committee decided that “it is not a substitute for the information sought to be gathered by this Tribunal for exercise of its jurisdiction which is sui generis”. It decided that liability of Oil India Limited to pay compensation is absolute, relying on the judgement of MC Mehta v. UOI, (1987) 1 SCC 395. Tribunal primarily relied on the decision of    LG Polymer Chemical Plant, In Re, 2020 SCC OnLine NGT 129 which was similar to the current incident and has been discussed above.
  • The committee in its order, while acknowledging the relief funds made by Oil laid emphasis on the fact that the company is still bound to pay compensation to the State. [Bonani Kakkar v. Oil India Limited, I.A. No. 30 of 2020, decided on 02-07-2020]
Case BriefsSupreme Court

Supreme Court: Taking note of the fact that several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection, the bench directed the Tribunals and High Courts to award compensation for loss of consortium, which is a legitimate conventional head.

“There is no justification to award compensation towards loss of love and affection as a separate head.”

The 3-judge bench of SA Nazeer, Indu Malhotra and Aniruddha Bose, JJ was hearing an issue relating to determination of compensation in a motor vehicle accident case.

On Loss of Consortium

The Constitution Bench in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.

Explaining the law on loss of consortium, the Court said that the right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child.

The Court noticed that in Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130, this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

The Court, hence, said that it was necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection.

On Future Prospects

In the wake of increased inflation, rising consumer prices, and general standards of living, future prospects have to be taken into consideration, not only with respect to the status or educational qualifications of the deceased, but also other relevant factors such as higher salaries and perks which are being offered by private companies these days. The dearness allowance and perks from which the family would have derived monthly benefit, are required to be taken into consideration for determining the loss of dependency.

The Court, further, reiterated:

  • The age of the deceased should be the basis for applying the multiplier.
  • Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
  • The decision in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, is to be relied upon for determination of the multiplicand, the deduction for personal and living expenses, and the selection of multiplier.

[United India Insurance Co. Ltd. v. Satinder Kaur, 2020 SCC OnLine SC 410 , decided on 30.06.2020]


Also read:

Future income of salaried or self-employed person to be considered while computing compensation under MV Act

Court duty-bound to provide ‘just compensation’ under MV Act irrespective of plea; compensation for ‘loss of consortium’ awarded under Article 142