Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., set aside NCDRC’s order granting 14 lakhs compensation to the claimants in negligence claim against doctors. The Bench stated,

“The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.”

In the instant case, the National Consumer Disputes Redressal Commission (NCDRC) had directed the appellants i.e., Bombay Hospital & Medical Research Centre and Dr. C. Anand Somaya to pay a sum of Rs. 14,18,491/- along with interest at 9% p.a. to the claimants. The claimants, namely legal heirs of the deceased – patient Dinesh Jaiswal had alleged medical negligence and deficiency of service on the part of the Hospital and the Doctor in treating the patient.

Factual Analysis

Noticeably, the allegation against the hospital was of failure of the Doctor to take the follow-up action after surgery, a delayed decision to amputate the leg subsequent to re-exploration, and the alleged undue foreign visit of the Doctor.

Admittedly, the patient was in critical condition when the Doctor was consulted and surgery was thereafter performed within two days. Rejecting the claim of negligence, the Bench opined that non-working of the DSA machine and consequent delay in performing the test could not be said to be negligence on the part of the Doctor or the Hospital. The Bench remarked,

“DSA machine is a large, expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non-functional because of innumerable factors beyond the human control as the machines involve various mechanical, electrical and electronic components.”

Since the DSA test of the patient was conducted in the Hospital prior to surgery was a proof that DSA machine was not dysfunctional for a long time. Moreover, the alternative process to determine the blood flow was carried out by angiography and the decision for re-exploration was taken. On the issue of non availability of operation theatres, the Bench held,

“No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times.”

Therefore, the Bench opined that non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients was not a valid ground to hold the Hospital negligent in any manner. In respect of the allegation that doctors failed to amputate legs on time, the Bench observed that efforts were being made to save the limbs as amputation was considered as the last resort. The amputation was done as per the advice of Dr. Pachore, who was the expert in that subject. Similarly, with regard to the contention of the Doctor being on a foreign visit, the Bench held that mere fact that the Doctor had gone abroad could not lead to an inference of medical negligence as the patient was admitted in a hospital having specialists in multi-faculties.

Findings of the Court

Noticeably, it was not the case of the complainant that Doctor was not possessed of requisite skill in carrying out the operation. Also, there was no proof of negligence in performing the surgery or in the process of re-exploration. Therefore, the Bench expressed,

“In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable.”

Opining that there is a tendency to blame the doctor when a patient dies or suffers some mishap, the Bench stated that the doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.

“It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case.”

Decision

Spotting both legal and factual errors in the findings recorded by NCDRC, the Bench opined that the order holding the Hospital and the Doctor guilty of medical negligence were not sustainable in law. Consequently, the appeals were allowed. The order of the NCDRC was set aside and the complaint was dismissed.

However, the Bench directed that the sum of Rs. 5 lakhs disbursed to the complainant by virtue of interim order passed by the Court should be treated as ex gratia payment to the complainant and not to be recovered by either the Hospital or the Doctor.

[Bombay Hospital & Medical Research Centre v. Asha Jaiswal, 2021 SCC OnLine SC 1149, decided on 30-11-2021]


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice Hemant Gupta

Case BriefsForeign Courts

City of Nelson held responsible for injuries caused by its snow clearing decisions: Is it true?


Supreme Court of Canada: While focusing on Canadian tort law and duty of care Coram of Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Martin and Kasirer JJ., decided that the City of Nelson owed a duty of care to a citizen who got injured due to the snow clearing decision of the City.

Background

Due to heavy snowfall, the city started plowing and sanding streets pursuant to its written snow clearing and removal policies and unwritten practices.

Among the tasks completed by city employees was the clearing of snow in angled parking stalls on streets located in the downtown core. Employees plowed the snow to the top of the parking spaces, creating a continuous snowbank along the curb that separated the parking stalls from the sidewalk. They did not clear an access route to the sidewalk for drivers parking in the stalls.

Negligence of the City

Taryn Joy Marchi parked in one of the angled parking stalls. She was attempting to access a business, but the snowbank created by the city blocked her route to the sidewalk. She decided to cross the snowbank and seriously injured her leg. Taryn Joy Marchi sued the city for negligence.

Trial Court’s decision

Trial Judge held that city did not owe a duty of care to Taryn Joy Marchi as the snow removal decisions were core policy decisions.

Court of appeal found an error in the trial judge decision and hence ordered for a new trial.

Analysis, Law and Decision

In the instant matter, respondent Taryn Joy Marchi suffered a significant physical injury on a municipal street, and by plowing the parking spaces on the street where the respondent parked, the city invited members of the public to use them to access businesses along the street.

Just category clearly extends to the prevention of injuries from snowbanks created by a government defendant on the roads and sidewalk.

City of Nelson could not prove that its decision to clear the snow from parking stalls in which respondent parked by creating snowbanks along the sidewalks without ensuring direct access to sidewalks was a core policy decision immune from liability in negligence.

Canadian Tort Law

Under the said law, there is no doubt that governments may sometimes be held liable for damage caused by their negligence in the same way as private defendants.

Supreme Court stated that the City could not show that the way it plowed the parking stalls was the result of a proactive, deliberative decision, based on value judgments to do with economic, social or political considerations.

The public interest is not served when ad hoc decisions that fail to balance competing interests or that fail to consider how best to mitigate harms are insulated from liability in negligence. Oversight of such decisions respects the respective roles of each branch of government under the separation of powers doctrine.

In view of the above appeal was dismissed and trial judgment was set aside.

Parting Words:

On duty of care, Court concluded that the impugned City decision was not a core policy decision and the City, therefore, owed Ms Marchi a duty of care.[Nelson (City) v. Marchi, 2021 SCC 41, decided on 21-10-2021]

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., applied the principle of strict liability to grant compensation to the petitioners who had lost their son due to negligence of the Power Development Department.

The petitioners were the parents of one Parvez Ahmad Gujjar, aged 12 years, who got electrocuted on 09-06-2008 when he incidentally touched the standing green tree touching electricity transmission line. An FIR was registered against the Department of Power Development on the allegation that 33 KV transmission line maintained by the Department of Power Development (PDD) was touching a green tree which created a short circuit in which the son of the petitioners died.

The police, after investigation, proved the case under Section 304-A RPC against the PDD and the medical opinion on record clearly demonstrated that the cause of death of son of the petitioners was due to electrocution.

Opining that the danger of these green trees touching the live wires and creating short circuit cannot be ruled out, the Bench stated,

“The maintenance of electric lines would include cutting and pruning of trees, for, there is likelihood of such trees and their branches coming into contact with live wires during rainy season or otherwise.”

Hence, the Bench held that apart from being vicariously liable for the negligent acts of its employees, who were maintaining and distributing the electricity through transmission lines essentially dealing with a dangerous activity which, having regard to its nature, was hazardous, the department was liable to compensate the petitioners on the principle of strict liability as it was the duty of the respondents to take all care and caution to prevent any mishap.

Reliance was placed by the Court on its recent decision in Abdul Aziz Bhat v. State of J&K, 2013 SCC OnLine J&K 182, wherein it had been held that “…a hazardous or an inherently dangerous activity can be tolerated only on the condition that such an enterprise would indemnify all those who suffer on account of carrying on of such dangerous activity, regardless of whether it is carried on with reasonable and due care. Therefore, even in a case where due care and caution had been taken…”

Accordingly, considering the policy of payment of ex-gratia relief to the Departmental or non-Departmental persons killed or grievously incapacitated due to electric related incidents promulgated vide Order No. 328-PDD/2011 dated 24-11-2011, the Bench held that the petitioners would be entitled to payment of lump-sum compensation of Rs 3.00 lac along with interest at the rate of 6% interest per annum to be calculated from the date of the death. Taking an stricter view, the Bench added, if the compensation awarded is not paid within eight the amount shall become payable along with interest at 9% per annum. [Jamal-ud-Din Gujjar v. State of J&K, 2021 SCC OnLine J&K 771, decided on 07-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioners: B.S.Bali, Advocate

For the State of J&K: F.A.Natnoo AAG

Case BriefsHigh Courts

Bombay High Court: While emphasizing the aspect of encroachment of public land, the Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., observed that,

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Aggrieved by the public notice issued by respondent 1 – the Slum Rehabilitation Authority, petitioners were to be rehabilitated being affected by Pune Metro Rail Project.

Petitioners contended that under the State’s policy, being slum dwellers, they have a status of being protected occupiers, who would be required to be rehabilitated by allotment of a free of cost permanent alternate accommodation in case land below the slum is sought to be utilized for public purpose.

Further, the petitioners contend that the slum dwellers society had opposed the passing of the Pune Metro through the slum land, so did the developers. They also suggested realignment of the metro track, however, sans success.

High Court noted that the petitioners who had initially encroached on the Government land and remained on the same for some time to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed within the vicinity.

Bench opined that any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies.

Violation of Public Trust Doctrine

Government on account of negligent approach by not protecting public lands from encroachment is later required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of taxpayers money.

Despite the might machinery, Government doesn’t protect its valuable land resulting into the grossest violation of public trust doctrine as a result of patent abuse of powers vested in such Government machinery is not protecting public property.

Accountability

Court added that it wonders as to whether at any point of time an audit in regard to encroached government land in State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and whether any steps to preserve the same have been taken – these are certain questions to be answered to “we the people” and accountability fixed for negligence.

Bench hoped that the Government awakens on such issues before it is too late and restores all the encroached Government lands for public benefit.

The above would certainly require a genuine political will and consciousness towards larger public benefit.

Coming to the present matter, High Court expressed that,

Mere right of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land.

 In the present matter, the petitioners were not denied the benefit of rehabilitation, infact they were called upon by several notices for allotment of premises, but they took an unreasonable adamant stand and refused the benefit.

Opining that the present petition was not filed bonafide, Court stated that the petition appeared to be a patent abuse of process of law.

While imposing costs of Rs 5,000 the petition was dismissed. [Abdul Majid Vakil Ahmad Patvekari v. Slum Rehabilitation Authority, WP No. 3983 of 2021, decided on 31-08-2021]


Advocates before the Court:

Mr. Nikhil Wadikar i/b. Mr. Rajesh Katore for the petitioners.
Mr. Deepak R. More for respondent no. 1.
Mr. B.V. Samant, AGP for the State.
Mr. S.K. Mishra, Senior Advocate a/w. Mr. Pralhad D. Paranjape and Mr. Kaustubh Deogade for respondent nos. 4 and 5.

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

Factual Backdrop

Petitioner’s son (Bharat) who was 28 years of age was the victim of an accident at the age of about 21 years which had left him 100% disabled. Instant petition was filed by petitioner’s father since petitioner was stated to be virtually bed ridden and not in a position to file to pursue his claim against the respondents.

Petitioner had made claims against the respondents BSES Rajdhani Power Limited and Bryn Construction Company.

Further, it was submitted that petitioner had suffered an accident due to certain work performed by Bryn for BRPL, which led to the filing of the present petition.

Cause of Permanent Disability

 Bharat, who was then about 21 years of age, while working as an electrician with Bryn, was tasked with rectifying a fault in an electricity pole that was causing fluctuation in the electricity supply at a farmhouse and suffered a fall while performing the task since the electricity pole that he had climbed on, snapped and fell.

Bharat’s dismal physical state apart, it was also evident to this court that Bharat was a psychological wreck, not least because in the course of interaction with this court, he broke- down on several occasions.

Depression and Anxiety

 As per medical opinion in regard to Bharat’s psychological state, his level of mental depression and anxiety fall in the “abnormal range”.

Questions for Consideration

  • Given his medical condition, what course of action should be adopted for Bharat’s further rehabilitation, continuing care and welfare?
  • Is Bharat entitled to receive any monetary compensation for the injury suffered by him as a result of the accident; if so, from which of the respondent or respondents?
  • If the answer to (ii) above is in the affirmative, in what manner should the compensation be calculated?

Analysis, Law and Decision

While analyzing and penning down this interesting decision, Court addressed a very fundamental issue, whether Bharat was an ‘employee’ of Bryn or was engaged by Bryn to perform the task that led to the accident.

It was noted that Bryn did not expressly admit that Bharat was their employee; nor that he had been engaged by them to perform the task in question.

However, there was also no denial of any kind, whether express or implied, that Bharat was working for Bryn. The thrust of Bryn’s counter-affidavit is that BRPL is responsible to compensate Bharat for the injury, since at the relevant time Bharat was working under BRPL’s supervision and performing BRPL’s tasks.

Court took note of the fact that while BRPL and Bryn both contended that all requisite safety equipment and precaution were made available by them, neither BRPL nor Bryn explained why such equipment, if available, failed to protect Bharat from the serious injury he suffered. 

Opinion of the Court

Bench opined that Bharat was working for Bryn and was tasked with certain maintenance work to be performed on an electricity pole owned by BRPL; which pole, it turned-out, was not strong enough to take Bharat’s weight or was not rooted securely in the ground, and thereby fell, as a result of which Bharat sustained serious injuries. It is also evident that Bharat was not provided any safety gear before he was directed to climb the pole to undertake the task.

 Principle of res ipsa loquitur

High Court added to its analysis that the instant matter would be squarely covered by the principle of res ipsa loquitur, whereby no detailed evidence, much less a trial, is required to establish ex-facie negligence on the part of BRPL and Bryn.

The said maxim was lucidly explained in the leading Supreme Court decision of Shyam Sundar v. State of Rajasthan, (1974) 1 SCC 690,

 The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. 

Elaborating further, the Court stated that the accident could not have occurred had Bryn and/or BRPL not been negligent in taking reasonable precautions to avoid it; which gave rise to their strict liability for the injuries sustained by Bharat.

The undated declaration with no proof of payment made to Bharat, though the declaration signed by Bryn accepting payment of a small sum of compensation in full and final settlement from Bryn and absolving them of any further liability.

In Court’s view, the above-mentioned declaration, deserved no credence or value since it smacked of being a document procured by Bryn precisely for the purpose of absolving itself of any further claim or liability vis-à-vis Bharat, by suborning a hapless and resourceless victim with a small amount of monetary bait, knowing full well that their actual liability would be much more.

Bench further expressed that merely because there were more than one respondent attempting to foist blame or liability on each other, that would not defeat the just claim of the petitioner’s son.

Hence, both respondents would be held jointly and severally liable, giving them liberty to recover the whole or any part of compensation paid, from one another.

High Court’s Inference

  • Without delving into the technical semantics of whether Bharat was an ‘employee’ of Bryn within the meaning of the Employee’s Compensation Act, suffice it to say that Bharat was performing the task in question for Bryn and at their instance
  • Bharat is unable to perform even the most basic, personal, daily chores himself and is all but 100% dependent on others; and as a result, though Bharat is living, he is barely alive;
  • On the principle of ‘strict liability’, both Bryn and BRPL are, jointly and severally, liable to compensate Bharat for putting him in his current state;
  • Section 4(2)(a) of the Employee’s Compensation Act mandates that apart from the liability to pay compensation, the employer is also under obligation to reimburse all actual medical expenses incurred by an employee for treatment of injuries. Furthermore, section 4-A provides that failure of an employer to pay compensation in a timely manner would attract payment of both interest and penalty for the delayed payment of compensation;
  • Reading the Bryn-BRPL Agreement and section 12 of the Employee’s Compensation Act together, it is seen that section 12 also fixes liability upon the “principal” for payment of compensation to an injured employee, with a right in the principal to recover the same from the contractor, if work was being carried-out by a contractor. In the present case the principal would therefore be BRPL and the contractor would be Bryn
  • Allowing the petition, Court awarded Bharat relief in two broad categories:
  1. Monetary Relief
  2. Non-Monetary Relief by way of directions.

Details of the relief can be referred to in the Judgment.

In view of the above discussion, petition was disposed of. [Kehar Sigh v. GNCTD, 2021 SCC OnLine Del 4198, decided on 25-08-2021]


Advocates before the Court:

For the Petitioner: Prabhsahay Kaur, Amicus Curiae.

Saraswati Thakur, Advocate.

For the Respondents: Satyakam, Additional Standing Counsel for GNCTD/R1

Ravi Gupta, Senior Counsel with Sunil Fernandes, Standing Counsel for BRPL-RPL with Anju Thomas, Shubham Sharma and Sachin Jain, Advocates for R2.

A.K. Sharma, Advocate for R3. Saurabh Sharma, Advocate for Indian Spinal Injuries Centre.

Sayli Petiwale, Advocate for Anil Mittal, Advocate for State of U.P.

Case BriefsHigh Courts

Orissa High Court: D Dash J. dismissed the appeal and held the appellants liable for compensation.

The facts of the case are such that the husband of the Plaintiff’ in the original suit, aged 44 years, earning Rs 8000 a month was going to his agricultural field suddenly came in contact with 11 K.V. electric wire, electrocuted and met an instantaneous death by said electrocution. Plaintiff 1 being wife and Plaintiff 2 being mother of the deceased filed the suit claiming compensation from the Defendants i.e. Central Electricity Supply Utility of Orissa and its officials. The trial court held that the Plaintiffs are entitled to be compensated by the defendants on account of negligence. The Defendants then preferred an appeal challenging the said judgment and decree passed by the trial court and Plaintiff filed a cross-appeal for increasing the quantum of compensation. Accordingly, while dismissing the appeal, the lower appellate court has allowed the cross-appeal enhancing the quantum of compensation. Assailing the said dismissal order instant second appeal under Section 100 Civil Procedure Code i.e. CPC was filed.

Counsel for the appellants Mr B. Dash submitted that the basis of the evidence that the overhead live electric wire being snapped when touches the ground, the supply of electricity through that wire is totally disrupted from end to end which has gone unchallenged; the courts below ought not to have said that the death of the husband of Plaintiff was due to the electrocution for the reason that the deceased came in contact with snapped overhead electric wire when he was on his way to the agricultural field. It was further submitted that the factual aspect is beyond pleadings and based on evidence.

Counsel for the respondents Mr B. Mohanty submitted that the court did commit no mistake in recording the said findings under attack and those are based on just and proper appreciation of evidence on record. It was submitted that the assessment of compensation as made by the lower appellate court is also in consonance with the settled principles as have been holding the field.

The Court observed that the principle of law is settled that a person undertaking an activity involving hazardous or risky exposure to human life is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as “strict liability”.

The Court further observed that it is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human, being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy.

The Court thus held “that the mistake committed by the trial court on those factual aspects by ignoring certain evidence on record and in not taking judicial notice of certain facts has been well rectified in appeal and in that way, it is found that the lower appellate court has so exercised its jurisdiction and power within the four corners of law.”

 In view of the above, appeal was dismissed.[Central Electricity Supply Utility of Odisha v. Damayanti Samal, 2021 SCC OnLine Ori 166, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

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

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

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

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

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

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


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsForeign Courts

Supreme Court of The United States (SCOTUS): While deciding the instant petition for granting the writ of certiorari, wherein a question of constitutional importance vis-à-vis the theory of personal liability for violence during an activity protected by the First Amendment as adopted by the Court of Appeals for the Fifth Circuit, came before the Bench; it was held that since the claim and the issues at the heart of the dispute are not only exceptional but also novel, therefore the Fifth Circuit should not have ventured into an ‘uncertain area of Tort law, especially when it has implications for First Amendment Rights without seeking guidance from the Louisiana Supreme Court.

As per the facts, the petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest against shooting by a local police officer. The protesters occupied the highway in front of the police headquar­ters. As officers began making arrests to clear the highway, an unidentified individual threw a ‘piece of concrete or a sim­ilar rock-like object’ thereby striking respondent Officer Doe in the face. As a result of the hit, the Officer suffered from severe injuries and brain trauma.  Even though the attacker remained unidentified, Officer Doe sought to recover damages from the petitioner on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the theory as being barred by the First Amendment. However, the Fifth Circuit Court found that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a po­lice officer was a foreseeable effect of negligently directing a protest” onto the highway. According to the Fifth Circuit, the First Amendment imposes no bar­rier to tort liability so long as the rock-throwing incident was “one of the ‘consequences’ of ‘tortious activity,’ which itself was ‘authorized, directed, or ratified’ by Mckesson in violation of his duty of care”.

Perusing the facts and the rationale applied by the Fifth Circuit, the SCOTUS Bench observed that when violence occurs during activ­ity protected by the First Amendment, that provision man­dates “precision of regulation” with respect to “the grounds that may give rise to damages liability” as well as “the per­sons who may be held accountable for those damages.”

Noting the petitioner’s contention that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only associ­ation with him was attendance at the protest; the Bench observed that Fifth Circuit’s interpretation of state law is too uncertain a premise to address the ques­tion raised in the instant petition. The Court also noted that Louisiana Supreme Court Rules, La. Sup. Ct. Rule 12, §§1–2 (2019), provides an opportunity for the Federal Courts Appeals (on their own accord or on motion of a party) to seek guidance in the absence of clear controlling precedents in the decisions of the Louisiana Supreme Court. Though it is not obligatory for the Federal Courts of Appeals to do so, but in exceptional instances, certification is advisa­ble before addressing a constitutional issue.

Noting that the core dispute forming the basis of the instant petition is certainly an exceptional instance, therefore the Court of Appeals should have certified to the Louisiana Supreme Court the questions – (1) whether Mckesson could have breached a duty of care in organizing and leading the protest; and (2) whether Officer Doe has al­leged a particular risk within the scope of protection afforded by the duty, provided one exists. Furthermore, the Bench observed that the, “Conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that warnings against premature adjudication of constitutional questions bear heightened atten­tion when a federal court is asked to invalidate a State’s law”. The Court thus granted the writ of certiorari and remanded the case back to the Fifth Circuit for further proceedings which are to be conducted in consonance with the SCOTUS’ opinions.[DeRay Mckesson v. John Doe, No.19–1108, decided on 02-11-2020] ­


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

The Commission takes suo-motu cognizance of the matter and directs the issuance of notice to the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within 4 weeks including the status of the investigation of the cases registered in connection with both the cases of murder.

The Commission also directs to issue a notice to the Chief Secretary to the Government of Uttar Pradesh calling for a report on whether any relief has been granted to the NOK of the deceased as the state has failed to secure the right to a fair trial of the victim. He is also expected to inform the status of any disciplinary action initiated against the delinquent officers/officials.

According to the police, the deceased man was from Gorakhpur and had come to the village, looking for a teacher named, Sudhir Kumar Singh. As soon as he saw Singh, he took out his father’s gun and killed the teacher, according to the police. After shooting the teacher, the man tried to escape but on spotting a crowd outside the house, he climbed the terrace, waved the gun and fired to keep the villagers at bay. A police team followed him to the terrace but the man escaped and was caught by a crowd, which set upon him. The videos relating to the incident emerged later, showed the man in police custody before the mob grabbed and attacked him.

According to the media reports, several policemen were present on the spot when the incident occurred. Some of the policemen were seen trying to control the crowd but the blows did not stop even when the man lay motionless. The police station in-charge of the area has been suspended for negligence. The victim’s head appeared to have been bashed in as the ground was splattered with blood.

The Commission has perused the contents that cruel high handedness by the villagers, taking law in their hands that too in the presence of police force, cannot be denied. A well-equipped police team was present on the spot when the victim was brutally attacked with sticks and stones.

The police personnel present at the time of the fateful incident and their in-charge definitely failed to do their lawful duty. Human life has been lost due to the apparent negligence of the public authority. This is a serious violation of human rights.


NHRC

Press Release dt. 08-09-2020

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 the 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]