Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, PC, CJ., L.T.B.Dehideniya and P. Padman Surasena, JJ., dismissed an application which was filed aggrieved by the denial of admission in the school stating it to be a Fundamental Right violation guaranteed under Article 12(1) of the Constitution.

Petitioners being the parents of the minor child had made an application to admit the child to Visaka Vidyalaya, Colombo. The application was based on the category of ‘children of persons belonging to the staff in an institution directly involved in school education’. Under the circular 24/ 2018 (1R1), paragraph 7.5.2.2, if a parent had worked in a difficult school, that parent was entitled to obtain 03 marks for a full year, up to the maximum of 15 marks, in relation to which he had submitted all the relevant documents with the school. The petitioner contended that the interview board headed by the Respondent had not accepted this document as proof of the fact that, A/ Habarana Maha Vidyalaya was a difficult school. Thus, the instant application. The Petitioners, on the basis of this document, argued that, they were entitled for additional 12 marks after which they go above the cut-off mark and their minor child would have been admitted to Visaka Vidyalaya. According to the respondents the appeal board had not considered this document because they were not permitted to consider any document other than the documents that were tendered at the 1st interview.

The Court while dismissing the application stated that the said act does not amount to a violation of Fundamental Rights under Article 12(1) of the Constitution and explained that Respondent being the Principal of Visaka Vidyalaya cannot be held liable for her conduct as the Petitioners were unable to produce a document certifying A/ Habarana Maha Vidyalaya is a difficult school at the interview and there was clear negligence on the part of the Petitioners in not producing the correct documents at the time of the interview and also the document that they relied on does not provide any basis for a relief provided by law. [Iresha Dulashini Dangolla v. Sandamali Aviruppola, 2020 SCC OnLine SL SC 5, decided on 04-08-2020]


*Suchita Shukla, Editorial Assistant has put this story together

Case BriefsForeign Courts

Supreme Court of Canada: Full Bench comprising Wagner, C.J., Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, JJ. allowed an appeal against a class action lawsuit claiming disgorgement from the Atlantic Lottery Corporation (ALC), a corporation which approves licenses for Video lottery terminals (VLTs).

The class action was instituted on behalf of any natural person who paid to play VLTs in the area in the six years preceding the lawsuit, which claimed that VLTs are deceptive and dangerous and contravene the Criminal Code’s (1985) prohibition of games similar to “three-card monte”. The plaintiffs claim that ALC breached its duty by not warning players of “the inherent dangers associated with VLTs, including the risk of addiction and suicide ideation.” The claim relies on three causes of action i.e., waiver of tort, breach of contract and unjust enrichment, to seek a gain-based award quantified by the profit ALC earned by licencing VLTs. ALC’s application against the claim before a certification judge failed, as did its appeal in the Court of Appeal, which allowed the plaintiff’s lawsuit to proceed to trial.

The Court, however, held that the plaintiffs’ plea is bound to fail since it does not disclose a reasonable cause of action. The bench opined that while disgorgement is a remedy against actionable misconduct, the plaintiffs seek to use it as an independent cause of action under an entirely new category of wrongful conduct, which is akin to negligence but does not require proof of damage. Denying relief on this ground, the Court asserted that “granting disgorgement for negligence without proof of damage would result in a remedy arising out of legal nothingness.” As for the argument concerning the similarity of VLTs to three-card monte, the Court rejected it since the prohibition was directed at the game’s attribute and not its feature of deception.

The Court opined that gain-based recoveries in cases of breach of contract require the consideration of the legitimate interest which such an award seeks to vindicate. Since the award sought by the plaintiffs is measured by the defendant’s gain, it seeks to serve a compensatory purpose which distinguishes it from disgorgement and that makes a gain-based remedy inappropriate. Moreover, the contract between ALC and the plaintiffs under which the plaintiffs paid to play on the VLTs cannot be said to have been vitiated since a benefit derived by a defendant from a valid contract is not unjustified. The plaintiffs failed in establishing a causal connection between the alleged breach of contract and the gain to be disgorged. However, four judges on the Bench dissented by allowing the appeal in part, striking down disgorgement and unjust enrichment as causes of action, instead suggesting that the lawsuit be focused on a breach of duty of care, the adequacy of ordinary remedies resulting from it and whether exemplary damages ought to be awarded. [Atlantic Lottery Corporation Inc. v. Babstock, 2020 SCC 19, decided on 24-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and N. J. Jamdar, J. dismissed a Public Interest Litigation seeking enforcement of safety guidelines while disposing of dead bodies of COVID-19 patients. The Court said that the petitioner could not provide any material to support his application.

Petitioner through the Public Interest Litigation sought to bring to judicial notice alleged negligence in management and disposal of dead bodies of COVID-19 victims by the staff of the Municipal Corporation of Greater Mumbai, more particularly in crematoriums at Shivaji Park and Chandanwadi.

Corporation by filing an affidavit-reply denied the allegations in the PIL petition.

Petitioner placed following prayers:

  • Court may be pleased to direct the respondent to direct the respondent State to enforce the safety guidelines for applying 1% hypoclorite over the bodies.
  • direct the Respondent to ensure that the bodies of the COVID- 19 patients are wrapped in the ‘leak-proof’ bags before sending them to the crematoriums, Muslim & Christian burial places.
  • direct the Respondent to provide adequate medication, protective overalls and sufficient material to maintain hygiene for the workers engaged at the funeral places.

Corporation referring to the guidelines laid down on 15th March, 2020 issued by MoHFW on management of dead bodies and a circular dated 4th June, 2020 with regard to SOP for handling of dead bodies, it was contended that the provisions of the guidelines were being strictly enforced so as to keep the spread of virus within manageable limits.

In a rejoinder affidavit filed by the petitioner it was vaguely alleged that the guidelines issued were not being strictly followed by the Corporation.

Court on perusal of Vhatkar and Sakhare, Senior Advocate for the Corporation’s pleadings stated that,

allegations made by the petitioner do not appear to be based on his personal knowledge infact the same has been made on reading certain newspaper reports.

Further the Court noted that no material was placed before the Court that could even remotely support or validate the stand of the petitioner.

Thus, Court held the fears and concerns of the petitioner to be misconceived.

“…petitioner has been residing in Pune during the lockdown period and alleging mismanagement in Mumbai has also left us to wonder how he could have verified the pleadings in the PIL Petition as true to the best of his knowledge.

Bench stated that if they keep aside the technicalities and proceed on the merits of the matter, on one hand the emphatic stand of the Corporation that the guidelines are being scrupulously followed and enforced in the matter of management and disposal of dead bodies of COVID victims. Not only has the Corporation pleaded that the polythene bags in which the cadavers are wrapped are of the requisite quality, it is also pleaded that ‘hypoclorite’, to the extent necessary, is being administered on the cadaver so as to prevent the spread of the virus.

Hence, Court in view of the above dismissed the petition and stated that the Court hopes and trust that the Corporation shall continue to earnestly adhere to and enforce the extant guidelines so that life of each and every citizen is preserved. [Ketan Tirodkar v. State of Maharashtra, PIL-CJ-LD-VC–29 of 2020, decided on 03-07-2020]

Op EdsOP. ED.

I. Introduction

“Tort” is a wrongful act or an infringement of a right leading to legal liability for which civil courts award compensation. The law of Torts is an uncodified law which is based on equity, justice and good conscience.

In its incipient stage, the English legal system was haphazard and was conducted on a case-to-case basis. Judges were asked to travel in each relevant region to comprehend the local laws which had developed over two centuries. Subsequently, based on their findings, the English judiciary introduced and implemented the said laws, by way of judgments, into the English legal system, which are now called legal precedents. These precedents form a part of the Common Law system.

The law of torts in India is based on the principles of the English Common Law. However, it has been modified to meet the local requirements. Some of the important principles of torts include negligence, nuisance, trespass, vicarious liability, strict and absolute liability. In context of the present article, we shall focus upon the concepts of strict and absolute liability vis-à-vis the two notable industrial disasters in India.

a)  Doctrine of Strict Liability

The doctrine of “strict liability” evolved in  Fletcher v. Rylands[1]. In this case, Rylands hired contractors to build a reservoir on his land. While building it, the contractors discovered some flaws and left them unfixed. After some time, Rylands’s reservoir burst and flooded Fletcher’s adjoining mine causing £937 worth of damage.  Blackburn, J. opined that any person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief, if it escapes must keep it at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape[2].

b) Doctrine of Absolute Liability

The principle of “absolute liability” was first ever applied by the Supreme Court of India in M.C. Mehta v. Union of India [3](popularly known as Oleum gas leak case). In this case, oleum gas leaked from a fertilizer plant of Shriram Foods and Fertilizers, Delhi and caused damage to several people. A pending public interest litigation (PIL) by M.C. Mehta provided the opportunity to the Court to pass a series of orders dealing with the after-effects of gas leak. In this case, the Court disapproved the application of the principle of strict liability. The Supreme Court opined that:

an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.”[4]

II. Bhopal Gas Tragedy

Union Carbide India Limited’s (UCIL) plant at Bhopal was designed by its holding company Union Carbide Corporation (UCC), USA and was built in 1969 for making pesticides, produced by reacting Methyl Isocyanate and Alpha Naphthol. An incident of gas leak took place in the Bhopal pesticide plant of UCIL on the night of 2-3 December, 1984 causing severe loss to the lives of people in the vicinity. People were exposed to this gas all around the city and the immediate effects were coughing, vomiting, severe eye irritation and a feeling of suffocation. Thousands of people died immediately, and lakhs of people sustained permanent injuries.

The doctrine of “absolute liability” was invoked in this case. In cases, where absolute liability is considered, liability of the company can be fixed even if there is no negligence on the part of the accused company.

In addition to the aforesaid, the Indian Government filed a case in the US Court for a claim of $3.3 billon against Union Carbide Corporation. By 1986 all these litigations in the US District were transferred to India on the grounds of forum non conveniens.[5]

Meanwhile, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985[6] was passed by Parliament  to confer certain powers on the Central Government to secure that claims arising out of, or connected with, the Bhopal gas leak disaster, are dealt with speedily, effectively, equitably and to the best advantage of the claimants and for matters incidental thereto. This Act made the Union Government representative of the victims of the tragedy and allowed them to file suits on their behalf. Along with this, an out of court settlement between the Government of India and Union Carbide was arrived at, which fixed the liability of the company to pay $470 million as per the full and final settlement of all claims, rights and liabilities arising out of that disaster. All in all, it was a bad move, as the settlement limited the liabilities for the claims which were filed later. It is a hard fact, but it is as clear as broad daylight that $470 million dollars were not sufficient to compensate all the injured. In fact, it is hardly 15% of the original claim of $3.3 billion.

The compensation awarded was around Rs. 1 lakh for the families of the people who lost their lives, Rs. 50,000 for permanently injured and Rs. 25,000 for temporarily injured.

III. Vizag Gas Tragedy

A similar incident of gas leak happened recently in Vishakhapatnam (Vizag), Andhra Pradesh on 7th May, 2020. Styrene gas leaked from the chemical plant owned by a South Korean company LG Polymers India Private Ltd. with similar repercussions on lives of the people living in the vicinity. The immediate worry was that this may be a repetition of the Bhopal Gas Tragedy of 1984. People in the neighbouring areas were evacuated immediately for preventing the damage. Even though this gas leakage was less dangerous than the leak at the Union Carbide factory in Bhopal, 13 people still lost their lives and many people were affected by it.

The Andhra Pradesh Government announced compensation of Rs. 1 Crore to the families of the people who had lost their lives, Rs. 10 Lakhs to the victims undergoing treatment on ventilators and Rs. 1 Lakh to the other victims who were hospitalised. It was made clear by the Government that the aforesaid compensation would be in addition to the compensation by LG Polymers.

Furthermore, the High Court of Andhra Pradesh took suo motu cognizance of the incident and  vide order dated 07-05-2020[7],  directed the State to take all necessary steps to mitigate the loss that may be caused due to this incident. Consequently, the National Green Tribunal (NGT) also took suo motu cognizance of the incident and directed[8] the company to deposit an initial amount of Rs 50 crores with the District Magistrate, Visakhapatnam. The Civil Appeal[9] preferred against this Order before the Supreme Court has been kept pending. However the Supreme Court neither issued notice nor, did it interfere with impugned order of the NGT.

The National Green Tribunal invoked the principle of ‘strict liability’ against LG Polymers for adversely affecting the public health and environment through its failures. However, in our opinion, considering the facts and circumstances of the case of LG Polymers, it is evident that the nature of the substance used and the activities of both the companies (UCIL and LGPI) are similar in nature, and thereby, the principle of absolute liability should have been applied in this case too.

The company had submitted an affidavit to the State Environment Impact Assessment Authority on 10th May, 2019 admitting that the unit did not have ‘environment clearance substantiating the produced quantity issued by the competent authority for continuing operations’ from the Ministry of Environment and Forests (MoEF). That affidavit was transferred to the Centre by the State for consideration. The affidavit submitted by the company proves the fact that there was clear hobnobbing and negligence of the government officials who were involved and designated by the respective government departments to ensure compliance of the environmental laws, and thereafter issue commencement certificate. The affidavit also brings out the fact that LG Polymers did not have the requisite permissions and clearances right from the inception[10]. However, the chemical plant carried on the industrial activities without any mandatory clearance and the facts prove that the industry was even de-listed as it refused expansion as per the directions of the ministry, yet it carried on the production and the negligence of the authorities, both at the Centre and at the State, proved costly and thirteen precious lives were lost and it is historically proven since the Bhopal gas tragedy, such poisonous gases gets into the genes and affects future generations also.

In the instant case, the erring government officials should be taken to task immediately by the High Court and departmental inquiries should be initiated against such erring officials and it should be seen that the people responsible in our system along with the Directors of the Company, are awarded the maximum punishment for such deliberate negligent act, which claimed innocent lives. Only then, it can act as a deterrent for other erring officials and erring companies who act in such brazen defiance of the statutory norms. This incident proves the very fact that no matter how much we try, until and unless we raise our voice against corruption, innocent lives will continue to get sacrificed.

The Andhra Pradesh High Court in Poisonous gas leakage in Visakhapatnam v. State of Andhra Pradesh[11]  vide order dated 22-05-2020 issued the following directions: The Government was ordered to seize the company premises of the LG Polymers chemical plant, Vizag and the directors were not allowed to enter the premises. In addition to this, assets, fixture, machinery and contents were not allowed to be shifted without Court’s permission. The Directors of the Company were ordered to surrender their passports and hence, they were not allowed to leave the country without the Court’s permission.

IV. Conclusion

On an analysis of the given circumstances, it is proved that the management of the company (LG Polymers) did not comply with the necessary environmental laws which were necessary for a Grade-A chemical plant and the affidavit submitted on 10.5.2019 to the State Department is a blatant admission of the same. The chemical plant was functioning even after de-listing from the Ministry of Environment and Forests (MOEF). It restarted its functions without the clearance from MoEF and the requisite permissions and licenses. Moreover, the government department and officials concerned who were entrusted and empowered to give such clearances did not scrutinise the very fact that the Company was de-listed for non-compliance and the affidavit dated 10.05.2019 admits such default on the part of the company and yet the plant started its operations. This act is nothing but a glaring example of corruption and scant regard for the rules, regulations or the safety of people.

Furthermore, the Constitution of India ensures checks and balances on the part of executives and citizens of the country. The Directive Principles of State Policy in Part-IV of the Constitution ensure that the necessary safeguards should be taken for environmental protection[12] and even the Supreme Court in a catena of decisions, has interpreted the  right to clean environment as a facet of Article 21 of the Constitution of India. The legislations pertaining to environmental law ensure that necessary prerequisites are in place.

The situation as it existed in 1986 has not changed much even after thirty-four years. The attitude of big companies seems to be of non-compliance and the government officials appear to be turning a blind eye to such companies at the cost of human lives. The law must ensure that such cases are treated with the utmost seriousness and urgency and that all the erring officials and directors of the company, should be punished appropriately so that justice prevails and a zero tolerance attitude is cemented for such cases.


*Partner, L&L Partners, New Delhi

**Senior Associate, L&L Partners

***Intern, L&L Partners

[1] (1866) LR 1 Ex 265.

[2] Fletcher v. Rylands , (1866) LR 1 Ex 265

[3] (1987) 1 SCC 395 

[4] M.C. Mehta v. Union of India, (1987) 1 SCC 395

[5] Forum Non Conveniens is a doctrine which allows a Court with jurisdiction over a case to dismiss it because the convenience of the parties and the interest of justice would be better served if the case were brought in a court having proper jurisdiction in another venue.

[6] Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 

[7] Poisonous gas leakage in Visakhapatnam, In re v. State of Andhra Pradesh, Suo Motu WP (PIL) No. 112 of 2020

[8] Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh, In re., 2020 SCC OnLine NGT 128

NGT vide order dt. 1-6-2020 [Gas Leak at LG Polymers Chemical Plant in Vishakhapatnam, In re, 2020 SCC OnLine NGT 129] has since directed the appropriation of Rs 50 crores deposited by LG Polymers, towards part liability and interim compensation to be spent for restoration of environment and compensation for victims. 

[9] LG Polymers India Pvt. Ltd. v. Andhra Pradesh Pollution Control Board, Civil Appeal Diary No. 11327/2020, order dated 19-5-2020

[10]. https://www.thehindu.com/news/cities/Visakhapatnam/lg-polymers-did-not-have-environmental-clearance-alleges-hrf/article31561365.ece

[11]. Suo Motu WPs (PIL) Nos. 112, 117 & 119 of 2020

[12]. Article 48-A of the Constitution of India, 1950 (inserted vide 42nd Amendment Act, 1976)

Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., while addressing a petition with regard to an accident caused due to the non-illuminated and unmanned police barricades held that,

“While the respondents claims and it is accepted that placing of the barricades at various places in the city is for public good, at the same time, it casts a duty on the respondent 2 to ensure that they do not become a cause for accidents.”

Petitioner 1 a student of Delhi University had suffered a road accident as informed by a police constable to Petitioner 2.

An FIR was registered against petitioner 1 by respondent 2 under Sections 279 and 337 of Penal Code, 1860 for rash and negligent driving.

Though it is disputed that petitioner 1 suffered an accident after colliding with barricades . These barricades were chained to cordon off the road/street completely.

Petitioner 1 had tried to slip through the gap in between the barriers and owing to the speed at which the vehicle was travelling, he was unable to spot the chain linking the barricades.

It is further asserted that as no helmet or any protective gear of any sort was found at the site of the accident, the petitioner 1 was in violation of the provisions of Section 129 of the Motor Vehicles Act, 1988.

It is thus asserted that the accident occurred due to contributory negligence of petitioner 1.

Disputing the above stated, photographs of the site were placed on record from which it could be seen that the barricades were placed at a spot that they could not be visible from afar.

Bench Analysis and Decision

Clause 6 of the Standing Order for “Procurement, Maintenance, Repairs and Operational Usage of Delhi Police Mobile Barricades? mandates that all barricades must have necessary fluorescent paint as well as blinkers so that they are visible from a long distance.

Clause 10 of the Standing Order further mandates that the barricades, under no circumstances, should be left unmanned.

Bench observed that from the photographs placed in record that place where the barricades were kept was not properly lighted. It is not shown that the barricades had adequate reflectors or blinkers so as to make them visible from a long distance. They were also unmanned.

Further the bench added that, merely because no helmet was shown to have been recovered from the site, cannot lead to a conclusion that the petitioner 1 was not wearing a helmet at the time of the accident or was driving his motorcycle at a high speed or rashly.

Thus, petitioners are held entitled to claim damages for negligence and failure of respondent 2 in discharging its duty.

A total compensation of Rs 75 lacs is found just and payable to the petitioners by the respondent 2. [Dheeraj Kumar v. Union of India, WP(C) No. 10799 of 2016, decided on 18-05-2020]

COVID 19Hot Off The PressNews

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports that a pregnant migrant woman, who was walking on foot from Maharashtra to Madhya Pradesh, has delivered her baby on road. She rested for 2 hours after the delivery and then continued walking for the remaining 150 kilometres.

The pregnant woman and her husband had reportedly started their journey from Nashik in Maharashtra and were walking towards their home in Satna in Madhya Pradesh.

The Commission has observed that this incident amounts to sheer negligence of the state authorities resulting in violation of human rights of the victim woman. Rights to life and dignity of the poor woman have been grossly violated. It is also indignity to the motherhood.

Accordingly, it has issued a notices to the Chief Secretaries of the states of Maharashtra and Madhya Pradesh calling for a detailed report in the matter, within four weeks including the health status of the woman and her child and also if any relief and rehabilitation has been provided by the state authorities to the aggrieved family.

The Commission would like to know about the measures being taken by both the states to ensure that the migrant labourers are not subjected to harassment and hardships during the lockdown.? The Commission would like to know as to what actions have been initiated against the erring public servants by the state authorities for their apathy & culpable negligence for not implementing the government orders and various measures mentioned in interstate Migrant Workmen Act, during lockdown period.

The Commission has observed that the contents of the news reports, which are replete, almost daily, with hardships being faced by the public during countrywide lockdown. There are news that the migrant workers are still forced to walk thousands of kilometres to reach their homes. It is disheartening to know the plight of the migrant labourers, particularly women, children, old age people and the pregnant women falling prey to states’ apathy.

A pregnant woman, who needs rest, medical checkup and special care, is not only forced to walk hundreds of kilometres but also to deliver her baby during her painful journey.

According to the media reports, on 12.05.2020, the woman experienced labour pains during the journey and the delivery took place en route. The husband of the woman has , reportedly, stated that after his wife delivered the baby, they rested for two hours and then again resumed walking as they had to cover at least another 150 kilometres to reach home. It is further mentioned that at Dhule, in Maharashtra clothes and essentials were given to them by a family for the newborn baby.


National Human Rights Commission

[Press Release dt. 14-05-2020]

Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of media reports about the death of eight persons and over five thousand others falling sick due to leakage of styrene gas in Vizag District of the State of Andhra Pradesh early morning today. The leakage of the gas has reportedly affected people within a radius of about 3 kilometers. Many people could be seen lying on roads while some complained of difficulty in breathing and rashes on their bodies.

The Commission has observed that though prima-facie, as of now, there are no reports regarding human error or negligence but the fact that so far at least 8 innocent citizens have lost their lives and thousands have fallen sick, is indeed a serious issue of violation of human rights. Right to life of the victims has been grossly violated. At a time when the human lives across the country are at stake due to spread of COVID-19 virus and everyone is forced to stay indoor, the gruesome tragedy has come as bolt from the blue for the people.

Accordingly, the Commission has issued a notice to the Chief Secretary, Government of Andhra Pradesh calling for a detailed report in the matter including status of the rescue operation, medical treatment provided to the people fallen sick and relief and rehabilitation provided by the state authorities to the affected families.

A notice has also been issued to the Director General of Police, Andhra Pradesh to inform within four weeks about registration of FIRs in the matter and status of the investigation being conducted.

The Commission also considered it appropriate to bring the matter to the notice of the Union Ministry of Corporate Affairs and has asked through its Secretary to examine whether the norms laid down under relevant provisions of the law are being implemented at the particular industrial unit and to submit a report to the Commission. Responses from all the these authorities are expected within four weeks.

As per early reports in the media, the incident has occurred at a chemical plant at LG Polymers Industry at RR Venkatapuram near Naiduthota area of the district around 3.00 AM today on 7th May,2020. The unit manufactures polystyrene and its co-polymers. An evacuation drive has reportedly been started by the police authorities and the District Collector is monitoring the situation. The NDRF and SDRF teams are also deployed in the area as mentioned in the news report.


National Human Rights Commission

[Press Release dt. 07-05-2020]

COVID 19Hot Off The PressNews

As reported by ANI, Central Government Advocate Gaurav Kant, wrote to the Chief Justice of Delhi High court for a suo moto action to be taken against the officials who couldn’t prevent the religious congregation at Nizamuddin.

Advocate Kanth said,

“religious congregation at Alamo Markaz Banglewali Masjid at Nizamuddin is a blatant disregard of the extent notifications and contributed to the spread of COVID-19 across the country.”

Further he asserted in his letter that,

“..in view of the situation and being a responsible officer of the Court, it is my duty to bring to the attention of Your Lordships so that Your Lordships can take suo moto cognizance of the situation and pass appropriate orders.”

He also sought appropriate actions to be taken against the negligence on the part of the officials.

He also asked the court to suggest remedial measures in order to curtail the spread of COVID-19 in the Nizamuddin area.


[Source: ANI]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member) while addressing the present first appeal held that,

“Releasing a dead body by a hospital to an unrelated third person unquestionably constitutes ‘deficiency in service’ within the meaning of Section 2(1)(g) & (o) of Consumer Protection Act, 1986.”

The present first appeal was filed challenging the compensation amount granted by Kerala State Commission for alleged negligence and deficiency in service from Ernakulam Medical Centre (OP-1) that issued wrong dead body of a patient to some other claimant.

Facts pertinent to the case are that, deceased’s body was kept in the mortuary of the hospital, when deceased’s grandson along with his father came for the release of the same, it came as a surprise that the dead body was not of the deceased. Further, it came to light that, V.K. Ramesh (Pubic Relations Officer) of OP-1 had already released the body to immediate relatives of Lt. Col. A.P. Kanthi who had died a day after the deceased and the body released was cremated with religious rites. Relatives of Lt. Col. A.P. Kanthi admitted their mistake and sought apology and thereafter handed over the ashes of the deceased.

It was alleged that that such callous attitude of OPs in wrongly releasing the dead body of the father of the complainants deprived their right to decent cremation of deceased. Aggrieved with the stated a complaint was filed before Kerala State Commission.

OPs contended that it was neither unfair trade practice nor negligence nor deficiency of service on their part. Complaint cannot be maintainable as the claim raised by complainants was beyond the scope of Consumer Protection Act, 1986.

Further the State Commission partly allowed the complaint by awarding Rs 25 lakhs as compensation. Aggrieved with the same, OPs filed the first appeal.

Commission in the above view held that, it was negligence and failure of duty of care by the PRO who without proper identification wrongly released the dead body of deceased. 

Commission also observed that,

“complaint is totally misconceived as 2 of the 4 children of the deceased person have attempted to make a fortune out of the mistake committed by a stranger who bonafidely claimed the body of their deceased father. The State Commission ought to have appreciated that it is trite law that awarding of compensation should be on the basis of cogent grounds.”

Concurring with State Commission’s view, bench stated that the point made by the complainants stands proved, i.e. release of the dead body of the complainants’ father to some other person, and thereby depriving the complainants of the last rites and cremation and final journey of the deceased, is decidedly deficiency in service within the meaning of Section 2(1)(g) & (o) of the Act 1986.

Thus, the compensation of Rs 5 lakh to the complainants would be just and equitable, and would meet the ends of justice. [Ernakulam Medical Centre v. Dr P.R. Jayasree, First Appeal No. 273 of 2017, decided on 12-03-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Vivek Varma, J. while addressing the present petition requested the National Human Rights Commission (NHRC) to have a complete inquiry or investigation due to the alleged violation of human rights and negligence in the prevention of such violation.

Alleged display of police brutality upon students who were protesting against the introduction of the Citizenship Amendment Act, 2019 is the reason for the filing of the present petition.

At Aligarh Muslim University a huge number of students assembled to share solidarity with the students of other Universities who were protesting against the above-stated Act. On the evening of December 15th, peaceful processions according to the petitioner was lodged at the Library canteen of the University.

A huge contingent of the police forces moved towards the University circle and provoked the students by different means including intentional utterance of abusive words. Students were heavily injured by the brutal lathi-charge, rubber bullets and pellets.

Further, the petitioner stated that to disburse the assembly of the students, the force was used by the State. The contingent of police forcefully entered in different parts of the University including the library, hostels, classrooms, offices, etc. and brutally behaved with students. Police officials intentionally assaulted the students and also vandalized the vehicles parked on the University campus.

It has also been alleged that a large number of students were detained and tortured then on 16-12-2019, University Registrar issued notices to vacate the hostels.

Counter affidavit filed by the Inspector General, Law & Order U.P. and Senior Superintendent of Police, Aligarh stated that the students in violation of the precautions as per Section 144 CrPC gathered at the University circle and when the authorities noticed the hindrance being caused by some of the students in their routine functioning, Registrar, Aligarh Muslim University requested the District Magistrate, Aligarh to take appropriate steps.

Registrar of the University had sent a letter to the District Magistrate requesting the deployment of security forces to prevent any untoward incident. District administration received certain intelligence inputs and also information from the Proctor of the University about the assembly of the students inside the University campus and their march towards Bab-e-Syed apprehending unwarranted incidents.

Gathering taking advantage of darkness started pelting stones vigorously from various directions and that enormously destroyed University property. Having no other option, the district administration decided to enter into University campus to disburse gathering and preventing the property from being damaged.

Additional Advocate General submitted that the above-said action was taken to prevent loss to public and public property at large. He also stated that in accordance with Article 19 of the Constitution of India, the right available is only to assemble peacefully without arms. But in the above incident, the assembly was absolutely unlawful and was abating for violence.

Senior Advocate, Sri Colin Gonsalves stated that the petitioner’s demand is to have a complete investigation as there is a violation of human rights and commission of cognizable crime. He also referred to the observations made in the Supreme Court Case in Extra Judicial Execution Victim Families Assn. v. Union of India, (2017) 8 SCC 417, wherein it was stated that,

“..inquiry or investigation by the National Human Rights Commission is of civil nature and that too is not an effective measure to bring the culprits of doing wrong to board.”

 

Decision

On perusal of the above-stated aspects, the High Court stated that, under the Protection of Human Rights Act, 1993 the Commission may inquire suo motu or on a petition relating to the students for violation of human rights or abatement thereof or negligence in the prevention of such violation by a public servant.

There has been alleged violation of human rights and also alleged negligence in the prevention of such violation. The narration of the facts certainly demands a probe.

Court on perusal of the powers of the NHRC stated that the entire matter is to be inquired by the Commission.

Inquiry by the State Human Rights Commission also but in light of the fact that the National Human Rights Commission is already undertaking inquiry relating to similar allegations on a complaint filed by the students and some faculty members of Jamia Milia Islamia University, the Bench considers it fit to have an inquiry in the present matter too by NHRC.

Commission has been requested to complete the inquiry within a period of one month and to convey its findings and recommendations, if any, to this Court immediately after the conclusion of the inquiry/investigation. [Mohd. Aman Khan v. Union of India, 2020 SCC OnLine All 1, decided on 07-01-2020]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Full Bench of Lady Hale (President), Lord Reed (Deputy President), Lord Lloyd Jones, Lord Sales, and Lord Thomas, dismissed the appeal filed by a bank.

In the present case, the respondent company, “Singularis”, is registered in the Cayman Islands, which was set up to manage the personal assets of Mr Maan Al Sanea. He was the company’s sole shareholder and also one of the directors. The other 6 directors did not have any influence over the company’s management. A loan financing for the purchase of shares was provided to Singularis in 2007, by the appellant investment bank i.e., Diawa. This loan was also the security for the repayment of the loan. In the year 2009, after the shares were sold and the loans were repaid, a surplus amount of money (US$204m) was held by the bank for the account of the respondent company. As per the instruction given by Al Sanea, Daiwa paid out the surplus funds to third parties. The payments were misappropriation of Singularis’ fund and as a result of that Singularis was unable to meet the demands of the creditors. Singularis consequently entered into liquidation. On 18.09.2009, the Cayman Islands made a winding-up order and a joint liquidator were appointed for the same.

Respondent company herein (Singularis) held a certain sum of money as a deposit with the appellant bank (Daiwa). In 2009, the bank Daiwa was instructed by an authorised signatory of Singularis (Mr. Al Sanea) to make payments out of Singularis’ account. The Bank approved and completed the transfers notwithstanding many obvious and glaring signs that Mr. Al Sanea was perpetrating a fraud on the company. In 2014, Singularis issued a claim against the bank for USD 204 million (the total amount transferred in 2009). There were two bases for the claim: (i) dishonest assistance in Al Sanea’s breach of fiduciary duty in misapplying Singularis’ funds; and (ii) breach of the Quincecare duty of care owed by the Bank to Singularis by giving effect to the payment instructions.

The Quincecare duty arises when bankers are asked to make payments in circumstances where there are reasonable grounds to suspect possible fraud. In such a situation, banks owe a duty of care to their customers to refrain from making payments. When “on inquiry” in this way, banks have a positive duty to investigate the potential fraud, they have to be satisfied, by enquiring as far a reasonable banker could be expected to do so, that the payment is not fraudulent before they can be “off inquiry” and go on to comply with their contractual obligations and make the payment.

The claim allowed by the High court was the breach of the Quincecare duty of care. Since Daiwa’s appeal against the finding of liability on the negligence was dismissed, it appealed to the Supreme Court.

The main issue which arose in this matter was, whether the appellant bank was in the breach of its duty towards their customers by transferring the money regardless of circumstances which were suspicious. Also, whether the customer’s claim against the bank was precluded by the fact that the fraudulent acts of the director should be attributed to the customer so as to bar the claim of the customer against the bank.

According to the findings of the case, the judge held that there was a clear breach of Quincecare duty of care by the appellant bank towards the respondent company. The possible defences raised by Daiwa were: illegality, causation, countervailing claim in deceit and attribution. The Court opined that whether or not Mr. Al Sanea’s fraud was attributed to the company, the said defences would fail in any circumstance. It was held that Daiwa was liable to Singularis for its breach of Quincecare duty. It was the appellant bank’s duty to realise something suspicious was going on and a reasonable inquiry should have been done for the same. Due to Daiwa’s negligence, the company (and through the company, its creditors) had to suffer and be victims of fraudulent incidents.

Thus, the claims of Daiwa were dismissed and the judgment of the trial court was upheld. [Singularis Holdings Ltd. v. Daiwa Capital Markets Europe Ltd., [2019] 3 WLR 997, decided on 30-10-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports narrating the painful story of 32 bonded labourers from the State of Odisha pleading for their rescue from a brick kiln at Kanumpalli Cross in Garladinne Mandal of the Anantapur district in Andhra Pradesh.

As mentioned in the news report, the victim labourers sent out an SOS to their relatives and friends back home for their rescue from travails they were undergoing for the past several months.

The Commission has observed that the contents of the media report, if true, indicate that the district authorities have failed to do their lawful duty to protect the labourers from victimization hence, strict action is required to be taken against the delinquent officers and appropriate legal action is also required to be taken against the brick kiln owner. Accordingly, it has issued a notice to the Chief Secretary, Government of Andhra Pradesh calling for a detailed report in the matter within one week.

The district authorities are expected to immediately rescue all the bonded labourers, issue release certificate and start the process of the payment of the statutory relief, immediately. The authorities are also expected to ensure the safe journey of the rescued labourers to their native place and in case any of them requires medical/ health care assistance that should be provided without fail.

The Commission has further observed that going by the contents of the media report, it appears to be a case of violation of human rights of the victims. The labourers are being kept under bondage including children and women without any basic amenities which are in violation of the Bonded Labour System (Abolition) Act, 1976. Strict action is required to be taken against the brick kiln owner as well as the officers concerned for their negligence.

The Commission has also observed that a large number of poor labourers fall prey to violators of law across the country due to poverty and lack of education and awareness about the existing laws. It has been insisting from every platform by organising conferences and seminars at the national level that the authorities concerned are required to be more vigilant and that the guilty are required to be punished without any delay, which is necessary to create a healthy environment for the labourers to work with dignity.

According to the media report, carried on 19-11-2019, a human rights activist, Sushant Panigrahi brought the issue to the notice of the District Collector when the administration came into action. Tahsildar of the area and one Sub-Inspector of Police visited the factory and took stock of the working conditions when all the 32 workers expressed their willingness to be rescued and return to their village in Odisha. The brick kiln owner had reportedly got the labourers from Odisha through a manpower supplier, for a period of six months.

The Tahsildar, as mentioned in the news report, has stated that the living conditions were very bad and the officers would make a further inspection to book the owner of the factory, under Bonded Labour System (Abolition) Act. The news report further reveals that according to a Tribal welfare activist, Rebbapragada Ravi, the labourers belong to Scheduled Tribe and OBC category hence, they are eligible for compensation under the Bonded Labour System (Abolition) Act and proper rehabilitation process.

Reportedly, six children were also found working at the factory who had come along with their parents. The women and children were staying in deplorable conditions without any basic amenities. The Child Welfare Committee Chairperson, Nallani Rajeshwari has also reportedly stated that she would definitely book the owner of the factory if the facts are found to be true.


National Human Rights Commission

[Press Release dt. 19-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of Justice Adarsh Kumar Goel (Chairperson) and Justice Raghuvendra S. Rathore, Justice S.P. Wangdi, Justice K. Ramakrishnan (Judicial Members); Dr Satyawan Sigh Garbyal, Dr Nagin Nanda and Saibal Dasgupta (Expert Members), took cognizance of air quality in Delhi.

Tribunal noted the report in some of the newspaper’s:

‘The Hindu’, the matter is reported under the heading ‘Delhi Chokes as air pollution levels hit a three-year high’.

‘Indian Express’, It is reported under the heading ‘Capital air crosses severe level, PMO steps in, Centre to monitor.

‘Times of India’, It is reported under the heading ‘Atmosfear: Delhi Victim of Sick Choke, Capital a Gas Chamber After Light Drizzle.

In the Hindustan Times, the heading is ‘Capital Punishment- Bhopal Gas tragedy occurred once and it has been dealt with, but this gas tragedy is occurringevery year and is not properly dealt with.

Further, Tribunal stated that, to provide efefctive access to judicial remedies for enforcement of right to healthy environment which is part of Right to Life under Article 21.

Supreme Court has issued directions in various matters. This Tribunal has also dealt with the issue in several cases including the matter dealing with 122 ‘non-attainment cities’ in the Country where the air quality is beyond prescribed norms and on the subject preventing ‘crop residue burning.

“Air pollution is source of diseases and threat to life.”

Tribunal adding to the above, stated that the present situation of severe air pollution “is not creation of one day. It is continuous negligence and apathy of statutory authorities in enforcing the law. While remedial action may continue to be taken in the best possible manner, there is urgent need to have proper planning to address the gaps in existing enforcement strategies and existing undesirable situation.”

The Bench further held that after interaction with the Chairman and Member Secretary of CPCB who have presented detailed analysis of the situation, tribunal found it necessary to further examine the matter after looking into the status of implementation of GRAP and other measures including preventive strategies currently adopted. [Air Quality Deterioration In And Around Delhi as reported in Print and Electronic Media, In Re, O.A No. 1008 of 2019, decided on 04-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Bench of Dr S.M. Kantikar (Presiding member) and Dinesh Singh (Member) dismissed the revision petition and asked the complainant to seek a remedy in a competent civil court as per the law.

In the present case, the dispute arose between O.P Thakur (Complainant) and Shimla Municipal Corporation (OP-1) and H.S. Kochar & MS Kochar, Landlords (OP-2). The dispute is in respect to “deficiency in service” as alleged by the complainant.

In the first instance after the filing the complaint, district forum held that, the present complaint cannot be decided summarily before the district forum.

Thereafter, State Commission remanded the complaint back to the district forum while directing that district forum will dispose of the complaint afresh. In adjudication afresh, the district forum reiterated its stand as was in the first instance and ordered the complaint to be returned for being presented before the competent civil court.

Again the State Commission vide its order directed that “complainant is relegated to civil court for adjudication of his dispute.”

Thus in view of the above, complainant filed the instant revision petition before the Commission under Section 21 (b) of the Consumer Protection Act, 1986 against the State Commission’s Order.

Contentions

Advocate, Sameer Thakur argued on behalf of the complainant revisionist and argued that the case is remanded to the district forum for adjudication on merit apropos deficiency in service against the municipal corporation alone.

Adding to his above argument, he stated that, the complaint is such as can be adjudicated on merit in summary proceedings in consumer protection fora established under the Act 1986. Further, he stated that, fundamental rights under Articles 14 and 19 (1) (g) of the Constitution of India are being violated by the municipal corporation’s deliberate/wilful negligence.

Corporation’s Negligence

The public drainage system above the complainant’s office premises has been neglected by the Corporation. The rainwater flow from Mall Road diverted and gets logged in front of the passage to complainant’s office premises and even enters inside the office room. Despite the odds, the complainant used to mitigate the loss/damage to his professional property to the maximum extent at his own expense.

The situation as stated above went unmanageable after the monsoons of 2011 and 2012. The complainant approached the Corporation Commissioner but was ignored and no action was taken for any of his complaints. Thereafter he filed an RTI application to seek appropriate redressal still no action was taken.

Complainant in the above situation had to exhaust his lifetime earning for the survival of his family.

Corporation’s deliberate /wilful negligence is violative of complainant’s fundamental rights under Articles 14 and 19 (1) (g) of the Constitution.

Analysis and Decision of the Commission

Commission while noting some observations stated that,

Consumer Protection fora do not enforce fundamental rights, they do not exercise jurisdiction of High Courts or Supreme Court under Articles 226 or 32.

The present complaint filed for ‘deficiency of service’ under the Act 1986 is not meant or intended to be in the nature of public interest litigation apropos a public authority.

Commission examined whether or not the specificities of the case are such as can be adjudicated on merit in summary proceedings in quasi judicial consumer protection fora established under the Act 1986.

Commission held that, the instant case can be aptly adjudicated on merit in summary proceedings by quasi judicial consumer protection fora established under Act 1986.

Further, it also stated that the revision petition is dismissed with liberty to the complainant to seek a remedy in a competent civil court as per law.  Nothing stops the complainant from seeking remedy under Article 226 or Article 32 in High Court or Supreme Court to enforce any of his fundamental rights including “Art 14 & 19(1)(g) of the Constitution” mentioned in his complaint.

In view of the above terms, the present revision petition stands dismissed. [O.P. Thakur v. Shimla Municipal Corpn., 2019 SCC OnLine NCDRC 326, decided on 15-10-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member), while deciding the present matter stated that,

“The provisions of the Consumer Protection Act are in addition to and not in derogation of other laws in force.”

In the present case, Complainant 1, an IPS officer filed a complaint against the opposite party – Bharat Biotech International Limited, a pharmaceutical company.

19-06-2001: For Hepatitis–B prophylaxis; Complainant 1 took the first dose of Hepatitis- vaccine ‘Energix-B’ manufactured by Smith Kline Beecham and on taking the same he did not experience any adverse reaction.

Complainant took the second dose of the vaccine with the trade name ‘Revac-B’ vaccine manufactured by Bharat Biotech Ltd. The vaccine was administered at the complainant’s residence and in a matter of 5 minutes of administering the same, the complainant started getting pain on the right deltoid region which went on increasing and inflammation started in that area. He also started feeling breathless with severe intolerable pain and thereafter he was rushed to a nearby hospital.

Complainant then approached Nizam Institute of Medical Sciences (NIMS), wherein the doctor gave him life-saving drugs and steroids. Thus the Complainant 1 had to battle for his life during his stay in NIMS from 19-06-2001 to 27-06-2001.

Complainant 1’s investigation about the vaccine

Complainant 1 enquired about the details of the company and came to know that drug control had issued a notice to the OP and it accused of not having printed the proper generic name of the said product in accordance with the prescribed manner. It was alleged that, the vaccine was released before the approval of the Central Research Institute, Kasauli.

Further, the allegation added to the list of allegations was that the drug department had received complaints that some people who used the vaccine ‘Revac-B’ of the same batch number as complainants developed pain at the place of injection. Complainant 1 was shocked and surprised on knowing that even after the drug department had issued directives, OP was doing unethical sales in the market.

OP manufactured the said dangerous vaccine in violation of license from drug controller with utter disregard to the value and importance of human life. Complainant further submitted that due to the said episode, his entire family suffered mentally as well as financially.

Thus in view of the above, Complainant 1 requested investigation and withholding of license to manufacture their vaccine using “Pischia Pastoris” pending the Drug Controller General’s investigation.

19-07-2001: OP was served legal notice due to the supply of sub-standard vaccines which did not meet the standard of purification. Aggrieved by the entirety, the complainant filed a complaint about the recovery of damages due to negligence of OP-Company.

OP’s Defence

Denying the entire set of allegations by Complainant 1 stated that, the complaint was based on the wrong premise. OP stated that it had obeyed the direction/ communication issued by Drugs Controller of Andhra Pradesh calling upon the OP to withdraw batch no. 009 from the market.  However, it was an administrative direction and not a conclusion about the quality of the vaccine because of the said batch no. 009 was already certified by the Central Drugs Laboratory, Kasauli, as being fit for human administration.

According to the OP, Complainant 1 did not belong to the high-risk category of immunization of ‘Hepatitis-B’. OP further submitted that there was no prescription with the Complainant 1 for ‘Hepatitis-B’ vaccination. The Complainant 1 neither produced bill showing his name and details of the purchase of Engerix-B (1 st dose) and the Revac-B (2 nd dose). The vaccine was administered by Dr Indeevar Reddy, the doctor of the police department which might have administered with lack of due care and caution.

Conclusion

On perusal of the affidavits of evidence and the medical record of NIMS, following were the observations:

  • Complainant 1 suffered severe pain after injections of ‘Revac B’, there are several reasons which could be due to faulty administration or storage/ refrigeration at the pharmacy. Therefore, how OP – Company made liable.
  • It is surprising that, how Dr Indeveer Reddy suggests the Complainant 1 to take ‘Revac B’ when already 1st dose of Energix-B was given.
  • NCDRC being impressed by the contention raised by Complainant 1 with respect to the use of vector ‘Pischia Pastoris’ for the manufacture of the vaccine. Drug authorities certified the product fit for human use and in the instant case, Central Drugs Laboratory certified the vaccine as being fit for human use and for release in the market.
  • When the vaccine caused the alleged problem, the complainant should have preserved the product literature and the vial of the vaccine as evidence before this commission.

Thus in view of the above-stated observations, a vaccine manufactured by OP was not hazardous. OP complied with WHO standards and manufacturing norms under Drugs and Cosmetic Act, 1940. In the present case, drug authorities have certified the product fit for human use and it was fit for release in the market.

According to the Commission, there is nothing on record to prove that the vaccine was either defective or of sub-standard quality. Complainant’s own statement about his life-threatening condition is totally false and the complainant’s motive in the present case was only to harass the OP in one way or the other. [M.L. Kumawat  v. Bharat Bio-Tech International Ltd., 2019 SCC OnLine NCDRC 325 , decided on 09-10-2019]

Case BriefsHigh Courts

Bombay High Court: A.M. Badar, J. addressed the present appeal challenging the Judgment and order of the trial court by setting aside and quashing the same, by observing that,

“Mere negligence or carelessness on the part of the accused cannot be termed as ‘abetment’.”

The accused 2 who has challenged the judgment and order of the trial court was convicted under Section 17 of Protection of Children from Sexual Offences Act, 2012. 

The facts of the case are that the victim of the crime was about 5 years of age at the time of the crime and accused 2 is the biological mother of the victim child. Accused 1 is the step-father. PW 2 had lodged the report for the crime who used to reside in the neighbourhood of accused persons and victim child used to visit her house for playing with her daughter. 

At the Dashera festival, accused 2 accompanied by victim child visited PW 2 who noticed injuries on the person of the victim female child. Victim female child disclosed to PW 2 that she was beaten by her step father, on hearing this, PW 2 asked accused 2 to accompany her in order to lodge the report of the offence being committed by accused 1 but the same was declined by accused 2. Further, while the female child victim was being bathed by PW 2, she noticed some injuries on the person of the victim, which were caused by her step-father. Victim informed PW 2 that accused 1 used to insert something in her vagina and also put chilly powder in her vagina. She even disclosed that she is beaten by him after tying her hands with wire of the mobile charger.

So far as accused 2 is concerned, the trial court had framed the charge for the offence punishable under Section 17 of the POCSO Act. Charge for the offence punishable under Sections 4 and 10 of the POCSO Act was framed against accused 1. Both accused persons were accordingly tried.

Trial Court’s conclusion was that the victim female child informed her mother i.e. accused 2 regarding the assault by accused 1 but accused 2 ignored this fact. Further, it added that though PW 2 disclosed accused 2 maintained silence and not interfered with the act of accused 1. This amounted to abetment by “illegal omission as well as intentional aid”. Thus, with the stated finding, Court had convicted accused 2 of the offence punishable under Section 17 of the POCSO Act accordingly.

High Court’s Finding

On hearing the submissions of the parties and in view of the facts and circumstances of the case, Court reproduced Section 16 of the POCSO Act, which defines the term ‘abetment’ of offence under POCSO Act.

“Trial Court held that the case of the prosecution is covered by Clause Thirdly of Section 16 of POCSO Act which deals with intentional aid by an act or illegal omission. At the cost of repetition it needs to mention here that trial court was alive to the legal position that in case of abetment by illegal omission, it is required to be proved b the prosecution that the accused was present at the time of commission of an act and at place of occurrence, but had failed to interfere in it which amounts to illegal omission.

Second explanation to Section 16 of the POCSO Act deals with the situation as to what amounts to intentionally aiding the offender. For making an accused liable for abetment by intentional aiding by an act or illegal omission, it is required to be established by the prosecution that either prior to or at the time of commission of act of offence, such Abettor does anything in order to facilitate the commission of the act of offence and facilitate the commission of offence. Thus the presence of the Abettor either before the commission of the offence for facilitating the commission of the offence or at the time of the commission of an act constituting the offence is necessary; for making out the offence of abetment.”

High Court stated that the evidence of child female victim makes it clear that accused 2 was not present either before or at the time of the commission of the act.

Court held that “mere giving aid will not make the act of abetment of an offence if the person who gave the aid did not know that the offence was being committed or contemplated. 

In order to convict a person of abetment by illegal omission, it is necessary to show that the accused intentionally aided the commission of offence by his non-interference and that the omission involved a breach of legal obligation.”

Subsequent failure on the part of accused 2 in non-reporting the matter to police, as such, does not amount to intentionally aiding the commission of offence by co-accused 1.

Mens rea is an essential element of the offence of abetment.

Thus, in view of the above, Court set aside the impugned Judgment and Order of the trial court and quashed the same by setting accused 2 at liberty if not required in any other case. [Asha Patil v. State of Maharashtra, 2019 SCC OnLine Bom 2056, decided on 18-09-2019]

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J. partly modified the award granted by Motor Accident Claims Tribunal on being challenged.

The trail of events in the case is as follows:

Original claimants filed the claim petition for getting compensation on account of the death of their son—Krushna Murlidhar Kabra. Deceased along with his friend were on a motorcycle and were dashed by Mahindra Bolero Vehicle which had come in a rash and negligent manner and dashed from the backside due to which both the riders on the motorcycle received severe injuries.

Further, Respondent 1 was the owner of the Bolero Vehicle which was insured with Respondent 2 on the date of the accident.

It was contended that the deceased was 22 years old and attaining a degree in M.Com. He was also doing some private job with a monthly salary of Rs 18,000 per month. He was also involved in share purchasing and selling out of which he used to earn Rs 3000 per month and in total his income for the month was estimated to be Rs 21,000 per month. On the basis of the said amount, compensation claimed was of Rs 55,00,000.

Taking into consideration the evidence placed, the Motor Accident Claims Tribunal had held that claimants had proved that Krushna died in the said accident due to rashness and negligence if the driver of the offending vehicle. Insurance Company had also failed to prove breach of terms of policy and therefore, both the respondents were held liable to pay compensation to the claimants.

Advocate, V.N. Upadhye represented the appellant. Advocate P.R. Katneshwarkar, holding for Advocate L.B. Pallod, appeared for Respondents 1 and 2.

The appellant submitted that he is challenging the Judgment & Award on the point of quantum. He submitted that, excessive compensation was awarded when, in fact, the law requires just compensation. Tribunal’s basis for granting award and calculating the same based on an imaginary figure ended in granting bonanza to the claimants.

High Court stated that, “What remains after discarding the oral evidence in respect of point of income adduced by the claimants is, the only guess work that has been done by the learned Tribunal.”

Courts are required to take a note of the fact of unemployment prevailing in the society. Highly qualified persons are unable to get job and if at all they are able to get, then they are required to be satisfied with a lesser salary.

Due to the above-stated circumstances, merely on the count that deceased was a brilliant student, his monthly salary cannot be assessed to Rs 20,000 per month, but it was reasonable to derive that he could have fetched a job with a salary of Rs 10,000 per month with the qualifications he seemed to have attained.

Tribunal included the future prospectus in the amount as stated above of Rs 20,000, but on placing reliance on the decision of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, the type of calculation as stated was not expected. High Court modified the same and did the calculations based on taking into consideration his income at Rs 10,000 per month.

The fact that the deceased was a bachelor and in view of the decision in Sarla Verma v. DTC, (2009) 6 SCC 121, 50% is required to be deducted towards personal expenditure.

Thus, the claimants were entitled to get compensation of Rs 15,82,000. Accordingly, the Court gave the following order:

  • Judgment and award passed by the Member of the Motor Accident Claims Tribunal is hereby set aside and modified.
  • Rest of the award is kept as it is. [Reliance General Insurance Co. Ltd. v. Murlidhar, 2019 SCC OnLine Bom 1548, decided on 13-08-2019]
Case BriefsHigh Courts

Karnataka High Court: B. Veerappa, J. allowed a petition filed by two nurses for quashing of an order whereby they were held liable for the death of a child due to their negligence. 

Petitioners herein were the two nurses of a hospital who had approached the Court challenging the order of Karnataka Medical Council (KMC) which had held both of them responsible for negligent death of a child. The complaint of negligence was filed by respondent whose child had died in the hospital. KMC passed an order holding that the complainant had failed to prove negligence on the part of doctors, but it held the petitioner-nurses liable for negligence and directed the Medical Superintendent to take action against them.

Counsel for the petitioner, N. Ravindranath Kamath contended that nurses are not medical practitioners as per the provisions of the Karnataka Medical Registration Act, 1961. Whereas counsel for the respondent, R. Nagendra Malik contended that only because of the negligence on the part of the petitioners, the complainant lost her child.   

The Court held that a comprehensive reading of Sections 2, 13 and 15 of the Karnataka Medical Registration Act, lead to the conclusion that nurses could not be categorized as medical practitioners practicing medicine. Thus, KMC had no jurisdiction to take action against the petitioner. 

In view of the above, holding the impugned order to be in excess of KMC’s jurisdiction, it was quashed. [Medical Superintendent, Kasturba Hospital v. Fathima Bi, Writ Petition No. 35640 of 2012 decided on 18-06-2019] 

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J., while putting petitioners to terms, allowed their application filed under Section 311 CrPC to recall three prosecution witnesses for cross-examination.

Earlier, the trial court had dismissed the petitioner’s application for recall of prosecution witnesses. Dinesh Sah and Rajeev Rajan, Advocates appearing for petitioners submitted that the witnesses sought to be recalled were material witnesses who could not be cross-examined due to the negligence of the previous counsel. It was submitted that petitioners may be put to terms for their negligence, however, recalling of prosecution witnesses was essential. Per contra, Izhar Ahmad, Additional Public Prosecutor supported the trial court’s order.

On perusal of the record, the High Court found that the petitioners did not exercise due diligence in defending themselves before the trial court and the blame was sought to be put on the previous counsel, whose name was not disclosed. Be that as it may, the Court was of the view that cross-examination of prosecution witnesses was necessary for a just decision of the case. Deeming it appropriate that petitioners be put to terms, the Court allowed their application filed under Section 311 while inflicting a cost of Rs 30,000 to be deposited with Prime Minister’s Relief Fund. [Ashok v. State, 2019 SCC OnLine Del 7059, dated 04-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ and V. Kameswar Rao, J. allowed a letters patent appeal against the judgment of the writ court whereby the appellants petition for compensation of his son was dismissed.

On the fateful day, the appellant and his 14-years old son had gone to Sanjay Park maintained by Respondent 1 — East Delhi Municipal Corporation, where while playing cricket the son came in contact with an electric wire lying there and was electrocuted which resulted in his death. In the action brought for compensation by the appellant, the respondents started to shift the liability on each-other, Respondent 2 being BSES, the company responsible to maintain the electricity system in the said park. The writ court dismissed the action holding that there was a dispute as to who was responsible and such a question could only be looked into by the trial court.

The High Court was of the view that approach of the writ court was not right. The Court was of the view that the negligence on the part of respondents was writ large in the improper manner of maintaining the electricity system. It was of the view that the death of deceased was caused due to negligence of the respondents. In such situation, according to the High Court, the writ court ought not to dismiss the valid claim for compensation brought by the appellant. Holding thus, the only question left was of assessing the amount of compensation to be awarded to the appellant for the death of his 14-years old son. After applying the proper formula, the Court assessed the amount of compensation at Rs 27,38,607.81 along with interest. At first, both the respondents shall each pay 50% of the amount and thereafter they could work a settlement amongst themselves. The appeal was disposed of in the manner above. [Rajeev Singhal v. MCD, 2018 SCC OnLine Del 11518, dated 27-09-2018]