Case BriefsDistrict Court

State Consumer Dispute Redressal Commission, Odisha (SCDRC): Dr D.P. Choudhury (President) modified the compensation amount awarded to a Law Student in light of being subjected to ‘Deficiency of Service’ and ‘Unfair Trade by ‘Amazon’.

The instant appeal was filed under Section 15 of the erstwhile Consumer Protection Act, 1986.

Factual Matrix

While the appellant was in his first year of law school, the OP had floated an offer for sale of a Laptop without Laptop Bag for Rs 190 against the price of Rs 23,499.

OP had confirmed for placing of the order and two hours after receiving the confirmation, the appellant received a phone call from the OP’s Customer Care Service Department stating that the subject order stood cancelled due to the price recession issue.

Since the complainant was in need of a laptop to prepare his project, he raised an objection for such cancellation.

On not receiving any response from the OP, complainant issued a legal notice.

Deficiency in Service

Appellant had to purchase another laptop but suffered from mental agony for such cancellation, hence filed a complaint alleging the deficiency in service and unfair trade practice.

Complainant claimed compensation of Rs 50,000 and Rs. 10,000 towards litigation cost.

District Forum had allowed the complaint partly by directing the OP to pay compensation of Rs 10,000 for mental agony and to pay Rs 2,000 towards the cost of litigation.

Hence, the aforesaid impugned order was challenged by the complainant/appellant stating that the District Forum committed error in law by not deciding to direct to pay Rs 50,000 as compensation.

Analysis, Decision and Law

Bench observed that “When there is an advertisement made for offer placed by the OP and made the offer as per the material available on record and complainant placed the order and same got confirmed, the agreement is complete.”

Another aspect to be noted was that, when the OP had allowed Rockery Marketing at his platform as per written version, the responsibility of the OP could not be lost sight of.

Since there was a breach of contract by OP, OP is held to be liable to pay the damages.

Commission agreed with District Forum’s observation that OP not only negligent in providing service but was also involved in unfair trade practice.

Taking all the factors discussed above for consideration, Bench concluded that compensation awarded should be of Rs 30,000 for unfair trade practice and punitive damages of Rs 10,000. Further, with regard to the cost of litigation Rs 5000 needs to be awarded.

On failing to make the above payments to the complainant within 30 days, the said amounts will carry interest at the rate of 12% per annum.

In view of the above, the appeal was disposed of. [Supriyo Ranjan Mahapatra v. Amazon Development Centre India (P) Ltd., First Appeal No. 492 of 2018, decided on 11-01-2021]


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District Consumer Forum directs ‘Amazon’ to pay compensation for “deficiency in services”

Case BriefsForeign Courts

Supreme Court of United Kingdom: In the instant appeal where the issue was whether the claimant can recover damages for the “consequences” (including the subsequent loss of liberty) of having committed the criminal offence during a serious psychotic episode, which she would not have committed but for the defendant’s negligence; the 7 Judge Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Hamblen unanimously dismissed the appeal holding that the appellant’s claim for damages against Dorset Healthcare is barred by the appellant’s criminal act of manslaughter, and are therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio (from a dishonorable cause an action does not arise) i.e. illegality.

Facts:

The appellant suffers from paranoid schizophrenia or schizoaffective disorder. On 25-08-2010 she stabbed her mother to death while experiencing a serious psychotic episode. She was charged with her mother’s murder but, in view of the psychiatric evidence, the prosecution agreed to a plea of manslaughter by reason of diminished responsibility. The appellant was sentenced to a hospital order under Section 37 of the Mental Health Act 1983 and an unlimited restriction order under Section 41 of the 1983 Act. The appellant has remained subject to detention pursuant to the 1983 Act ever since. Dorset Healthcare University NHS Foundation Trust (respondent) had admitted their negligence in failing to return the appellant to hospital on the basis of her obvious psychotic state. The tragic killing of her mother would not have occurred had this been done. On the basis of the respondent’s admission of negligence, the appellant furthered her claims to recover damages under several heads, such as- General damages for personal injury (a depressive disorder and post-traumatic stress disorder); damages for her loss of liberty caused by her compulsory detention in hospital; damages for loss of amenity arising from the consequences to her of having killed her mother; cost of caretaker and psychotherapy etc.

The relevant laws and case laws on point:

Before analyzing the merits of the instant appeal, the judges deliberated on the laws dealing with murder; insanity as a defence to murder; diminished responsibility as a partial defence to murder (Section 2 of the Homicide Act 1957); The Sentencing Council Guideline directing the sentencing judge to consider whether the offender’s degree of responsibility is high, medium or lower and the provisions of Mental Health Act, 1983 itself.

The Bench also referred to 2 major case laws dealing with similar issues- Gray v. Thames Trains Ltd, [2009] UKHL 33 and Patel v. Mirza, [2016] UKSC 42. In Gray, the House of Lords had held that Mr. Gray’s negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and (ii) his own criminal act of manslaughter. In Patel, the UK SC had held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations. In assessing whether the public interest would be harmed in that way, the Court should consider the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; any other relevant public policy on which denying the claim may have an impact; and whether denying the claim would be a proportionate response to the illegality.

Observations:

While deliberating on the appeal, the Bench formulated 3 issues– whether Gray can be distinguished; if not, whether Gray should be departed from; and, can the appellant recover the damages under any of heads of loss she has claimed. The Bench observed that key consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected. The Bench thereby rejected the appellant’s contention and held that, “Gray cannot be distinguished. It involved the same offence, the same sentence and the reasoning of the majority applies regardless of the degree of personal responsibility for the offending”.

Regarding the 2nd issue, the Court while affirming Gray as being Patel compliant” and should be applied and followed in similar cases, held that the policy reasons which support denial of the appellant’s claim include the consistency and public confidence principles identified in Gray. It was further held that, “Principles also include: the public interest in the proper allocation of NHS resources; close connection between her claim and her offence; and the public interest in deterring, protecting the public from and condemning unlawful killing. Although a claimant in the appellant’s position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life”.

Finally addressing the 3rd issue, the Bench held that the appellant cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these losses resulted from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered either because they result from the appellant’s unlawful killing of her mother.[Ecila Henderson v. Dorset Healthcare University NHS Foundation Trust,  [20203 WLR 1124, decided on 30-10-2020]


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Case BriefsHigh Courts

Calcutta High Court: Ravi Krishan Kapur, J., while addressing an issue pertaining to Employees’ State Insurance Act, 1948, observed that,

The ESI Act provides for certain benefits to employees in case of sickness, maternity and employment injury and makes provisions for certain other matters in relation thereto. A perusal of the various sections of the Act would reveal that the Act is made applicable to all factories.

Present petition was filed challenging an order passed under Section 85B of the Employees’ State Insurance Act, 1948 whereby the Employees’ State Insurance Authorities levied penal damages of nearly Rs 60 lakhs under Section 85B of the Act on the petitioner establishment for the delay in making payment of its contributions for the period from September 2002 to March 2010.

By a conversion agreement between the owner of Jute Mill and petitioner 1, petitioner 1 was allowed to utilize the entire production capacity of the jute mill for the production of jute goods.

Further, the ESI authorities claimed that a sum of Rs 3,73,04,297 was in arrears out of which only a sum of Rs 1,10,97,511 was on account of ESI contributions and the rest represented damages and interest.

Petitioners contended that the above-stated dues said to be payable by the petitioners were primarily for the period prior to the agreement which had been executed between the owners of the jute mill and petitioner 1.

An impugned order came to be passed inter alia holding the petitioner company liable for a sum of Rs 59,61,588 on account of damages for the delayed payment of contributions for the period from September, 2002 to March, 2010.

Petitioner contended that the said order was liable to be set aside and quashed on the ground that the same was an unreasoned order.

Decision

Bench opined that the question as to whether the damages imposed under Section 85B of the Act are justiciable or not or whether the quantum of damages is in accordance with the principles for computing damages is certainly a dispute which would fall within the ambit of clause (g) of Section 75 (1) of the Act.

Court further added that, under Section 75(1)(g) of the Act, the Insurance Court would ordinarily have jurisdiction to decide the question as to whether damages imposed under Section 85B of the ESI Act are justifiable or not.

Bench referred to the Supreme Court decision in B.M. Laxmanamurthy v. Employees’ State Corporation, Bangalore (1974) 4 SCC 365, wherein it was held that

“the Act is a beneficial piece of social security legislation in the interests of labourers in factories at the first instance with the power to extend to other establishments”.

Thus, the Act is a welfare measure meant to provide certain benefits to the employees in certain cases of sickness, maternity and employment injury. It is also a well-settled principle of statutory interpretation that socio-economic legislation should be interpreted liberally with an end to promote the scheme of the Act and avoid the mischief which it seeks to control.

Crux of the dispute in this petition pertains to the applicability and imposition of the damages by the ESI authorities under Section 85B of the Act.

What is the intention behind the insertion of Section 85B of the ESI Act?

To deter the employer who makes any default or delay in depositing the contribution amount.

In the present matter, there was a delay of 8 years on the part of the establishment in making payment of their ESI dues.

Delayed payment, which means untimely payment gives rise to a breach of the obligations under the Act and for such failure and omission (if not explained) the employer exposes itself to recovery of damages.

Hence, the levy of damages as per Section 85B of the Act was fully justified and warranted.

In view of the admitted indisputable and unassailable fact of delay for more than 8 years in making payment of the ESI contributions, no reasonable or prudent person apprised of these facts could take a different view on the question of whether such non-payment on the part of the petitioners was intentional or not.

Petitioner failed to show any mitigating factors or offer any cogent explanation.

Court further added that in the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of 3 years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.

Section 93A of the Act clearly provides that both the employer and the person to whom the factory or establishment has been transferred remain jointly and severally liable to pay the amounts due in respect of any amount under the Act.

In view of the above-stated Section, Court stated that a transferee cannot claim that he being the transferee of an establishment is not liable to pay the dues accruing before the transfer.

Court found no aspect of limitation insofar as damages were concerned.

Therefore, failure on the part of the establishment to carry out their statutory obligations was in conscious and wilful disregard of their lawful obligations.

“An the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of three years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.”

Respondent authorities were directed to take all available steps in accordance with law for expeditious recovery of the balance amount payable under the impugned order by the petitioner.[Premchand Jute & Industries (P) Ltd. v. Employees State Insurance Corporation, 2020 SCC OnLine Cal 1574, decided on 18-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while allowing the present appeals with regard to failure in showing sufficient cause to seeking review with a delay of 2680 days, stated that,

“It needs no rocket science for anyone to infer that probably the respondent got a premonition that it might lose.”

Facts pertinent to the issue

An agreement was entered between the appellants and respondent, wherein the respondent was to supply bunker fuel to the appellant’s vessel M.T. Antikeros at Mudra Port.  After the respondent supplied the same, 12 days later a dispute arose between the parties regarding the quantity and quality of the fuel. After about a month, the appellant claimed for damages. Respondent denied the liability and raised a counter-claim.

Appellant on 19-03-2009, invoked the arbitration clause, with a view to save arbitration costs, proposed a sole arbitrator. Appellant appointed R.S. Cooper as its arbitrator and called upon the respondent to do likewise. Respondent failed to respond to appoint an Arbitrator. Later Single Judge of the Bombay High Court pursuant to an application filed by the appellant for appointment of an arbitrator on behalf of respondent disposed of the same by appointing J.K. Bhatt as an Arbitrator on 21-04-2011.

The above-stated arbitrator’s appointed T.V. Shanbhag as the Presiding Arbitrator.

On 19-09-2013, Arbitral Tribunal settled the issues which arose for determination.

Respondents challenged the Jurisdiction of the tribunal. Later on 03-08-2018, respondents while filing an application seeking to recall the order passed by the tribunal on 03-07-2013, as also the order dated 19-09-2013, by which order issues were settled.

Though, the tribunal rejected the above application. Further, the respondents challenged the order passed by Single Judge of the Bombay High Court regarding the appointment of J.K. Bhatt as an Arbitrator.

On 30-8-2018 the respondent filed a petition seeking review of the order dated 21-04-2011 passed by this Court. It also sought 7 years delay in filing the Review Application to be condoned.

On 22-03-2018, the impugned order was passed condoning delay of 7 years in seeking review of the order dated 21-04-2011 and simultaneously recalling the said order of appointment of J.K. Bhatt as an Arbitrator on behalf of the respondent.

“Torpedo shot by the respondent on 30-08-2018 hit its target. The Arbitral Tribunal came to be hit, in that, its constitution was blasted by the torpedo fired by the respondent.”

On noting the stated facts, Single Judge noted that the subject matter of the application being an international commercial arbitration the appropriate fora was the Supreme Court of India and thus, the order dated 21-04-2011 was a nullity and is non-est.

Where a Court acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on the facts the order should not have been passed under that provision

High Court noted that the impugned order being passed in exercise of the review jurisdiction by the Single Judge both the appeals are maintainable.

Court observed that

prior to the amendment of the Act by the Arbitration & Conciliation (Amendment) Act 2015 brought into force with effect from 01-01-2016 when in sub-section 4, 5 & 6 of Section 11 of the Act the words ‘the Chief Justice or any person or institution designated by him’ wherever they occur were replaced by the words ‘the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court’, the position was that under the Act the procedure for appointment in case of sub-section 3 being applicable was to file an application before the Chief Justice of a High Court or any person or institution designated by him, in a case of domestic arbitration and before the Chief Justice of India or any person or institution designated by him in International Commercial Arbitration.

Section 11 of the Arbitration Act was a Judicial Power was held in 7-Judge Bench decision of the Supreme Court S.B.P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618.

Thus, on perusal of the above-stated analysis and facts, Bench held that Single Judge had no jurisdiction to entertain the petition seeking review of the order dated 21-04-2011.

Further, Court stated that, the impugned order is vitiated when it proceeds to condone the delay by not considering whether the sufficient cause was shown to condone the delay of 2680 days in seeking review of the above-stated order.

“Whilst it may be true that an order passed in a lis or an issue which cannot be taken cognizance of by a Court or an authority is void and non-est, but that does not mean that a party can sleep over its rights and participate in further proceedings and one fine day approach the Court or the authority to rectify the error.”

Hence, respondents failed to show sufficient cause entitling it to 2680 days delay in seeking review of the order dated 21-04-2011 to be condoned.

The torpedo fired by the respondent is declared to be a dude and it sinks without hitting its target.

Appellant would be entitled to costs incurred before the Single Judge as also in the instant appeals which bench quantified at Rs 5 lakhs. [Antikeros Shipping Corpn. v.  Adani Enterprises Ltd., 2020 SCC OnLine Bom 277, decided on 18-02-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, Priyantha Jayawardena and Murdu N. B. Fernando, JJ., dismissed an appeal which was filed on the ground that the High Court Judge had erred in attaching liability to the defendant to pay damages.

The original action in the High Court was filed in order to recover damages with legal interest from the defendant-appellant for breach of contract. The defendant had entered into an agreement with the Commissioner-General of the Department of Educational Publications in the Ministry of Education (hereinafter “Commissioner-General”) to print several school textbooks and the parties had agreed to print the whole order for a specific amount within a specified deadline. The contention of the Plaintiff was that the defendant had failed to meet the deadline and complete the order and whatever part of the order was complete even that was delivered after the specified deadline because of which the Commissioner General was compelled to commission three other printing agencies to print the remainder. Exercising rights stipulated in clauses (15), (21) and (23) of the Agreement the Commissioner-General, on behalf of the State, sought to recover the damages as it was the defendant’s default that had caused additional expenses. Having failed to secure the recovery by way of a letter of demand, the Attorney General had instituted an action in the High Court, where the Court had answered all the issues raised in favour of the plaintiff. The counsel for the defendant-appellant had submitted that the facts of the case were not disputed but he only wished to canvass the conclusions reached by the trial Judge, the defendant had contended that the Agreement was terminated by mutual consent and not pursuant to a breach basing their arguments on the conduct of the plaintiff such as not serving notice to show cause, not blacklisting the defendant, awarding subsequent contracts and making payments without any deductions in the form of a penalty but there was stark paucity of any evidence and the High Court had held that the defendant had failed to substantiate their position that they were not in breach of the agreement.

The Court while dismissing the appeal explained that they agreed with the Judgment of the High Court as the defendant-appellant had neither produced evidence establishing that they had not fulfilled their obligations nor had they controverted the evidence led by the Plaintiff to this effect. [Tisara Packaging Industries Ltd. v. Attorney General, SC CHC Appeal No. 17 of 2010, decided on 18-10-2019]

Case BriefsHigh Courts

Karnataka High Court: S.G. Pandit, J. while disposing of this Civil Revision Petition filed under Section 115 of Civil Procedure Code set aside the order of the lower Court.

In the instant case, the application of the petitioner filed under Order 17 Rule 1 and 2 CPC was rejected by an order on 16.02.2019 for non-deposit of arrears of rent. Aggrieved by this, the petitioner had assailed this order.

The petitioner, a tenant filed R.A. No. 24 of 2015 against the Judgment and Decree of the Civil Judge and JMFC, Nagamangala. The application was for seeking fifteen days’ time for payment of arrears of rent/damages. But, it was rejected by the Trial Court on the ground that no undertaking was filed as to on which date it will be given and no bonafide was given. As a consequence of this, R.A. No. 24 of 2015 was also dismissed.

The petitioner deposited a sum of Rs 66,000 before this Court against the aforesaid payment of arrears of rent/damages.

N. Manjunatha, Counsel for the Respondent submitted that the above amount shall cover till the month of May 2019.

To this D.S. Hosmath, Counsel for the petitioner submitted that the remaining will be submitted before the Appellate Court.

The Court after analysing the facts and circumstances of the case observed that instead of rejecting the application outright, some reasonable time should have been granted. The Court also directed the appellate court to hear the appeal on merits.[Channappa v. M.R. Narayanashastry, 2019 SCC OnLine Kar 1836, decided on 17-09-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: V.M. Morobane, AJ. adopted the method of actuarial computation while awarding compensation to the plaintiff.

This case arises out of a motor collision which occurred on 16-02-2012. As per the Road Accident Fund Act (56 of 1996), a defendant has to pay for all loss or damage incurred by a victim of an accident in a motor vehicle.

The plaintiff claimed for general damages for the loss and damage he incurred. But, it was rejected. Now, that his claim got rejected the only issue remained to be determined was quantum for loss of earning capacity. The plaintiff’s testimony led to the other four witnesses.

The plaintiff worked in a company named Deboning as a delivery person. He had a code 8 driver’s license. He testified that due to his injuries he lost control of the clutch while driving. Moreover, he could not carry heavy objects nor stand for more than ten minutes. Thereafter, he was dismissed.

The second witness, supervisor to the plaintiff at the time of the accident testified that the plaintiff was retrenched by the employer as the business went into liquidation. The third witness testified that the plaintiff’s job was lighter and less physical. He got less productive after the accident. The fourth witness recommended that the plaintiff should only perform the sedentary type of work. The first witness testified that the plaintiff will not be able to perform strenuous activities.

The Court observed in light of the evidence that the plaintiff could still drive although it would be harmful to him to do so. The plaintiff is entitled to a sum of money which would restore him to the position before the accident. The Court cited some cases.

In Southern Insurance Association Ltd. v. Bailey, 1984 (1) SA 98 (A) at 116G, it was set out that where the method of actuarial computation is adopted a Judge has “a large discretion to award what he considers right”.

In AA Mutual Insurance Assn. Ltd. v. Maqula, 1978 (1) SA 805 (A) at 809A-B, a trial court has wide discretion in the matters of awarding compensation.

In terms of these cases, the defendant was directed to pay a sum of Rs 513 646 for loss of earnings and ordered to furnish an undertaking to bear the costs of future medical expenses of the plaintiff arising out of injuries sustained in the motor collision.[Minnie Dawood v. Road Accident Fund, Case No. 1913 of 2014, decided on 01-08-2019]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Bench of Lady Hale, President and Lord Reed, Deputy President and Lord Carnwath, Lord Llyoyd-Jones and Lady Arden allowed an appeal filed against the Judgment of Northern Ireland Court of Appeal concerning a stay granted on the proceedings for a claim of damages under Section 8 of the Human Rights Act, 1998.

The appellant’s son, Pearse Jordan, was shot and killed by a member of Royal Ulster Constabulary in November, 1992. His father, Hugh Jordan, made an application to the European Court of Human Rights complaining that the failure to carry out a prompt and effective investigation into his son’s death. He sought a declaration that the Coroner and Police Service of Northern  Ireland had been responsible for delay in the commencement of the inquest in violation of his rights under Article 2 of the European Convention on Human Rights together with awards of damages under Article 8 of the Human Rights Act. Subsequently, the proceedings were taken over by his wife, the appellant, following his deteriorating health.

The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what has come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment, Hughes’ Application for Judicial Review, In re, [2018] NIQB 30, Sir Paul Girvan found that there was a systematic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved.

The Court Appeal, after considering the provisions of the Human Rights Act, laid down a general rule that claims of the present kind could not be brought before the conclusion of an inquest, and that any claims which had been brought before that stage should be stayed until then. This was, however, clarified by the Court of Appeal in a subsequent decision in McCord’s Application for Judicial review, In re, unreported, 18-1-2019, which judgment appears to confine the general rule prescribed in the present case to those cases where the only outstanding issue is damages and where an inquest can be expected to begin within the near future, if not already underway.

The present appeal was brought against the Judgment of the Court of Appeal staying the proceedings brought by Hugh Jordan until the completion of inquest. The Supreme Court was of the view that the appeal ought to be allowed. It was discussed that a stay on proceedings can be ordered in appropriate circumstances even n cases brought by persons claiming a violation of their Convention rights, however, regard must be had to three important aspects of the Convention rights:

(a) Rights that are practical and effective: Convention rights must be applied in a way which renders them practical and effective, not theoretical and illusory. The effectiveness of the right under article 2 to have an investigation into a death begin promptly and proceed with reasonable expedition could be gravely weakened if there were a general practice of staying proceedings seeking to secure the prompt holding of an inquest, typically by obtaining a mandatory order or a declaration.

(b) Determination within a reasonable time: The staying of proceedings will be unlawful if it results in a breach of the “reasonable time” guarantee in Article 6 of the Convention. That would be a real possibility in some cases if stays until after the completion of an inquest were ordered as a general rule. That right under Article 6 is distinct from Article 2.

(c) Proportionality of restrictions on access to the Courts: Since a stay of proceedings prevents a claim from being pursued so long as it remains in place, it engages another aspect of Article 6 of the Convention, namely the guarantee of an effective right of access to a court. That exercise requires consideration of the circumstances of the individual case before the court.

The Supreme Court observed: “There is no doubt that there may be cases in which it is proportionate to impose a stay on a claim for damages in a legacy case, weighing the relevant factors for and against it. There is equally no doubt that there may be cases in which, weighing those factors, a stay is not proportionate. Since the relevant factors can differ in nature and weight from one case to another, it follows that courts should carry out the necessary balancing exercise in the individual case. A virtually automatic rule requiring all such claims to be stayed until after the inquest, regardless of their individual circumstances, would not comply with that requirement, and in addition, as previously explained, would result in breaches of the reasonable time requirement of Article 6.”

It was held that the decision of the Court of Appeal was not consistent with the foregoing principles. It did not involve an assessment of proportionality. It was also stated that it is uncertain whether the court would have ordered the stay if such an assessment had been conducted, particularly if Hugh Jordan’s ill health had been drawn to its attention. In such circumstances, the appeal was allowed. [Hugh Jordan’s Application for Judicial Review, In re, [2019] UKSC 9, dated 06-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. dismissed a second appeal filed against the order made in first appeal wherein it was held that the plaintiffs were not entitled to claim damages for wrongful possession of rented premises by the defendant.

The plaintiffs were owners of the subject property which was let out to Nizam Government which handed it over to Zila Parishad. In the year 1990, Zila Parishad terminated its own tenancy and directed its officials yo handover the possession of the property to plaintiffs. However, this direction was not complied with. It was also an admitted fact that plaintiffs did not take any step to recover the possession of the property and were now directly before the Court claim damages for wrongful possession by Zila Parishad.

Question before the Court was “Whether the landlord would be entitled for damages after termination of tenancy if he does not take any step for recovery of possession for more than 12 years after termination?”

The High Court referred to Chander Kali Bai v. Jagdish Singh Thakur, (1977) 4 SCC 402 wherein it was observed, “if a tenant continues in possession after termination of contractual tenancy, he would not be liable for damages till the decree for eviction is passed.” In the instant case, no decree for eviction was passed. The tenant Zila Parishad itself terminated the tenancy. In such case, the landlord plaintiffs were bound to file suit for possession. He could not directly file suit for damages for the amount not agreed under the contract. Furthermore, damages by way of mesne profits can be awarded under Order 20 Rule 12 only from the date of decree for possession for the period for which the possession is wrongfully retained in spite of the decree. In such view of the matter, the second appeal was dismissed. [Arvind v. State, 2018 SCC OnLine Bom 6069decided on 10-12-2018]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: Plaintiff had approached this court before a Single Judge Bench of E. Revelas, J., for grant of damages against the defendant for injuries sustained by him during a motor vehicle accident.

Counsel of defendant, Advocate Paterson conceded that in absence of any contrary version the plaintiff’s account of the accident had to be accepted but since plaintiff did not apply brakes shows his negligence and that there was contributory negligence on his part.

High Court was of the view that even if some other driver would have reacted differently in the same circumstances, it does not mean that the plaintiff’s responses and actions were negligent. It was noticed that if the plaintiff had applied brakes it could have caused the vehicle to skid into other traffic and could have then resulted in contributory negligence. Court found the other colliding vehicle’s driver to be aggressive, reckless and inconsiderate and the one to be wholly blamed. Therefore, the defendant was directed to pay 100% of damages to the plaintiff. [Nicholas v. Road Accident Fund, Case No. 3880 of 2015, decided on 27-11-2018]

 

Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Sanjay K. Agrawal in an order stated that “Post office is not liable to pay damages for delay in delivery of speed post-postal articles in light of Section 6 of the Indian Post Office Act, 1898.”

The facts of the case stated that, the petition dealt with the issue of whether Permanent Lok Adalat, Public Utility Services is justified in granting damages to the respondent whose speed post in regard for an application for a post at Bastar University did not reach on time and in light of the said circumstance, the respondent reached before the Permanent Lok Adalat to claim damages.

The contentions of the petitioner-Union of India rejecting the claim stated that in view of Section 6 of the Indian Post Office Act, 1898, for the delay in transmission of the postal article, the petitioner does not stand responsible as the delay did not occur due to any kind of fraud or willful intention of the petitioner.

Therefore, the High Court on careful consideration of the facts and circumstances of the case and on perusal of Section 6 of the Indian Post Office Act, 1898 the court made clear that Post office is run by the Government and it shall not be liable for any delay caused during the delivery of the postal articles, except the liability which may be expressed by the Central Government. Hence the Court by setting aside the order by the Permanent Lok Adalat stated that petitioner is not liable to pay any damages and respondent is only entitled to compensation equal to the composite speed post charges that have been already paid.[Post Master, Main Post Office, Jagdalpur v. Rajesh Nag, 2018 SCC OnLine Chh 552, order dated 19-07-2018]

Hot Off The PressNews

Johnson & Johnson has been asked to pay nearly $4.7bn as damages to 22 women who claimed that ‘Johnson’s baby powder’ was the reason for the development of ovarian cancer in them.

The trial to claim punitive and compensatory damages of $4.14bn and $550m in the said case was held at a Court in St. Louis. Medical experts testified that asbestos a known carcinogen was mixed with the talcum powder and is the primary ingredient in the said talcum powder.

So far about 9,000 women have claimed damages from the company as they stated that the talcum powder had contributed to their ‘ovarian cancer’.

The company said that it intended to appeal as they were disappointed with the Court’s verdict.

[Source: The Guardian]

Foreign CourtsNews

US District Court for Northern District of Texas: A federal court presided by Ed Kinkeade, J. halved the amount of USD 500 million that was to be paid by Facebook Inc. and others to ZeniMax Media Inc., a video game publisher. The Court also turned down ZeniMax’s request for the ban on sale and promotion of products by ‘Oculus’- virtual reality unit of Facebook. In 2014, Oculus (bought by Facebook for about USD 2 billion) was sued by ZeniMax alleging it of stealing trade secrets while developing a headset and violating copyright. In 2017, a US Jury in Dallas found that Oculus used ZeniMax’s computer code to launch ‘Oculus Rift’-VR headset; and ordered Facebook, Oculus, and others to pay a combined USD 500 mn to ZeniMax. Kinkeade, J., in his order, said that USD 250 mn ordered against Oculus and its co-founders for false designation lacked sufficient evidence for damages. Holding thus, the Court halved the amount to be paid by Facebook, Oculus, and others.

[Source: Reuters]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court granted an ex parte order in favour of Yahoo Inc. restraining the defendant to use the domain name ‘yahookochi’ and also awarded damages of Rs. 5 lakh.

The Court noted that there is no plausible explanation for the adoption of the identical mark as part of trading name and domain name of the defendant and the potentiality of harm is enormous on the internet as the plaintiff has a very wide internet presence and operates various YAHOO formative websites.

Mr. Praveen Anand represented the Plaintiff (Yahoo Inc.) and pointed out that even after issuance of Cease and Desist notice the defendant did not change the name. The Court said that “the adoption of the YAHOO mark by the defendants is dishonest as is evident from the fact that the font used by the defendants to represent YAHOO in their trading name is identical to the unique stylized font which the plaintiff used to represents its YAHOO trade mark till 2014”. [Yahoo Inc. v. Rinshad Rinu, 2017 SCC OnLine Del 8949 , decided on 03-07-2017]

Case BriefsHigh Courts

Allahabad High Court:  Deciding the question as to whether orders of Human Rights Commission to make payment of compensation or damages are mere recommendations, the Bench of Dr Dhananjaya Yeshwant Chandrachud, C.J. and Yashwant Varma, J. observed that  “Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion.

The deceased was an undertrial prisoner lodged in the district jail in Muzaffarnagar and suffering from chronic lung disease. The treatment record indicated that he was provided treatment only from 15-5-2012 and he died on 21-5-2012. Though he had been admitted to jail on 9-9-2011, until 15-5-2012, neither medical check up was carried out to control or treat his lung disease nor was he sent to a competent medical facility until his condition had deteriorated. After an inquiry, finding a case of negligence on the part of jail officials in not providing adequate medical treatment, the Commission recommended the grant of compensation of Rs 2 lakhs to his next of kin. Subsequently, the Commission directed the State Government to report compliance of the same along with proof of payment, which order is under challenge here.

The petitioner’s contention was that the power of the Commission under Section 18(a)(i) of the Protection of Human Rights Act, 1993 was to “recommend” to the Government or authority concerned to make payment of compensation or damages to the complainant or victim or the members of his family and since the Commission’s power being recommendatory in nature, the directive to furnish proof of compliance was contrary to law and liable to be set aside.

The basic question is whether the use of the expression “recommend” in Section 18(a) can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. The Court observed that “to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. The Commission is entitled to do so where it finds either a violation of human rights or a negligence in the prevention of a violation of human rights.”

The Court held that  “While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated. The provisions of the Act which have been made to enforce the constitutional protection of life and liberty by enabling the Commission to grant compensation for violations of human rights would be rendered nugatory. A construction which will produce that result cannot be adopted and must be rejected.”  [State of Uttar Pradesh  v. National Human Rights Commission, Writ Petition (C) No. 15570 of 2016, decided on  April 8, 2016]

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): NGT has directed Enercon (India) Ltd. to pay Rs. 50 Lakhs for causing damage and degradation to the ecology and environment by setting up wind mills in Kallpavalli area of Ananthapur District in Andhra Pradesh. Said amount would be paid as environmental compensation with the Andhra Pradesh Pollution Control Board, which shall be used for restoration of ecology and environment of the area. The direction of NGT came on an application filed by three societies working for environment protection and regeneration. It was alleged in the application that windmills project was causing irreversible long term ecological damage in the area. The adverse environmental impacts of setting up of cluster of wind mills as claimed by the applicants include increase the overall temperature of the area, destruction the grass, cutting of large number of trees, death of cattles after eating plastic and metal debris spread all over the area, etc. The applicants sought directions by the Tribunal including setting up of an expert committee to understand the actual threat which these windmills pose on the environment and human health; restoration of all the water bodies in the region, which had suffered in the hands of pollution and excavation caused during the construction and setting up of these windmills; inclusion of windmill farms in Category A of the schedule of the Environmental Impact Assessment Notification, 2006; and compensation for losses suffered. After perusing the material produced and the evidence on record, NGT observed that while setting up the wind mills, Enercon (India) Ltd. had constructed roads and, “while constructing the road, extensive damage was caused to the topography, the surrounding areas, ecology and environment. Respondent No. 5 Enercon (India) Ltd.  is, therefore, bound to compensate the damage and degradation caused to the ecology and environment. We, therefore, direct Respondent No. 5 to pay an environmental compensation of Rupees Fifty Lakhs.” The Tribunal further directed that trees of local indigenous species to be planted under guidance of State Forest Department on the constructed road and also on hill top around wind turbines, which shall be maintained as a green area and also directed that plastic, must be disposed properly. Kallpavalli Vrikha Pempakamdarula Paraspara Sahayaka Sahakara Sangam Ltd. v. Union of India, decided on August 25, 2015