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]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: The National Human Rights Commission has taken suo motu cognizance of media reports about the deaths of more than 80 infants/children at a government-run hospital in the district Banswara of Rajasthan during the last two months. It has issued a notice to the Chief Secretary, Government of Rajasthan calling for a detailed report in the matter within four weeks along with the steps taken and proposed to be taken to improve the conditions in the hospital. He has also been asked to inform whether any instructions in the recent past have been issued to the hospitals and other medical care institutions sensitizing them to be attentive and careful to prevent such tragic deaths due to any human errors/negligence.

Taking serious exception to the reported poor facilities and upkeep of the hospital, the Commission has observed that the negligence on the part of the hospital authorities amounts to violation of right to life of the poor victims. Many such cases from various parts of the country have come to the notice of the Commission, wherein a large number of human lives are lost due to the lack of infrastructure and callous attitude of the doctors/officers in the government run hospitals.

According to the media report, carried on the 5th September, 2017, the ‘Labour Room’ of the hospital was not properly sterilized and even the towels, being used, were found to be dirty. There was no proper sanitation in the Labour Room. The pregnant women were found to be underweight and proper consultation regarding appropriate diet was not being provided to them by the hospital. No proper records were being maintained. Due to weakness, they delivered babies at pre-mature stages and the infants suffered lung diseases leading to their deaths.

Reportedly, the State Government has suspended the Chief Medical Officer, Gynaecologist and the Block Medical Officer. Apart from this, 6 doctors have been issued show-cause notices and 6 others have been removed from the service.

National Human Rights Commission

Case BriefsForeign Courts

Supreme Court of Sri Lanka: The Supreme Court affirmed the High Court’s award of Rs. 3,500,000/- as damages to the plaintiff in a case of accident caused due to the negligence of gatekeepers appointed by the Sri Lankan Government.

The plaintiff is the wife of the deceased who was killed in an accident while he was driving his car through a level crossing. An unscheduled train passed through the crossing at the time which hit the plaintiff’s car, fatally injuring him. The fact being argued upon was whether leaving the gates of the level crossing by the gatekeepers amounted to negligence.

The Court affirmed with the judgment of the High Court and the District Court that it was the all important duty of the gatekeepers to shut the gates of the crossing before the arrival of the train. Failure to do so amounted to negligence on the part of the gatekeepers. Any person, who sees that the gates are open, can rightfully assume that there are no trains arriving at that time and hence he can safely cross. This is exactly what happened with the deceased and hence there was no contributory negligence on his part. Since the defendants were employed as gatekeepers by Sri Lankan Railways and the negligence was within the scope of employment, therefore Sri Lankan Railways shall also be made vicariously liable. The liability of the Sri Lankan Railways also arises out of the fact that they never informed the gatekeeper defendants about the arrival of an unscheduled train. The appeal was dismissed on these grounds. [Bhadra De Silva Rajakaruna v. General Manager of Railways, SC Appeal No. 62/2013, decided on 01.08.2017]

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): If theft of a vehicle takes place due to negligence of driver, insurance company cannot be made liable for payment of insurance claim, held NCDRC while dismissing a revision petition filed by owner of a truck which was stolen when the driver of the vehicle left it unattended with the key inside the ignition. The said truck was stolen from in front of All India Institute of Medical Sciences in the night intervening 19/20 January, 2010 when the driver left to relieve himself with the key of the truck in the ignition. When the owner approached the district consumer forum, seeking payment of Rs 7.61 lakh, Forum allowed his claim. The said order of Forum was later quashed by the State Consumer Disputes Redressal Commission, Rajasthan in appeal filed by Insurance Company. In revision, which was filed by the owner of truck against the order of State Commission, NCDRC observed that the alleged theft took place solely on account of the negligence on the part of the person who was driving the truck. While dismissing the petition, NCDRC held, “The driver of the vehicle was clearly negligent in leaving the truck unattended with the key inside the ignition.  In our opinion, once it is shown that the theft took place solely on account of the driver, employed by the insured, the Insurance Company cannot be made liable for such negligent act on the part of the driver and cannot be directed to reimburse the insured.  For this reason alone, the order passed by the State Commission is eminently justified.”(Arjun Lal Jat v. HDFC Irgo General Insurance Co. Ltd., Revision Petition No. 3182 of 2014, decided on August 28, 2014)

To read the full judgment, refer SCCOnLine