High Court of Delhi

Offshore Infrastructure Limited Vs. Indian Oil Corporation Limited

MANU/DE/0826/2018

26.02.2018

Commercial

While exercising judicial review, the Court should be circumspect in contractual matters as quashing decisions can result in unforeseen economic consequences

The Petitioner is aggrieved by the rejection of its bid submitted in response to the Notice Inviting Tender (NIT) for combined station works, including, civil, mechanical, electrical, telecom and instrumentation works at Paradip, Vizag, Rajamundry and Vijayawada stations and two 10000 KL capacity cone roof fire water storage tank at Vizag station under the PHPL Project ("the work"). The petitioner's bid was rejected on the ground of technical unfeasibility.

The record thus reveals that the Petitioner's bid was found suitable and technically feasible, except in regard to the unsatisfactory rating given to it by the PJ Construction division of the IOL. The Petitioner argues that consideration of performance in a previous contract, without reference to it or its involvement in the appraisal, amounts to debarring it; it questions the tender rejection, as it is based on a performance rating which did not involve a fair procedure.

Ordinarily, Courts defer to executive judgments in regard to public activities that involve award of contracts. The executive and the public authorities have freedom of contract and even if the Court finds some infirmity in the decision making process, unless there is illegality, patent arbitrariness, unreasonableness or mala fides evident on the face of the record, the Court should in the larger public interest, not interfere with the process.

The distinguishing factor, or the tipping consideration, in the opinion of the Court, that distinguishes the present case from facts in others is that IOL considered the performance appraisal of the Petitioner, in its previous contracts, based on an unfair procedure. By itself, the inclusion of performance appraisal reports as factors to consider whether to award or not award contracts is not arbitrary. However, in the application of the CPU guidelines- which was used by IOL, there is apparent and glaring procedural irregularity.

In the present case, the CPU guidelines were never published or made known to the Petitioner at any stage, either during the contract period relating to the Mohanpura Hookup work or later. The show cause notice did not spell out any consequence, much less the consequence of a negative appraisal report, leading to a possible denial of contract at a later stage. Furthermore, the final recommendation and approval of performance rating was not shared with the petitioner, contrary to the CPU guidelines.

These consequences were unknown to the Petitioner, when it received the show cause notice. Furthermore, the parties are also in litigation, since the IOL has invoked the arbitration clause; the petitioner is claiming some amounts as payable under the Mohanpura contract as outstanding unpaid dues, etc. Therefore, the failure to firstly inform the Petitioner, about the consequence of the show cause notice, i.e., that it could result in an adverse appraisal report, leading to denial of future work, the omission to comply with Para 5.7.6 and share the performance ratings with it and lastly the omission to indeed share the CPU guidelines, rendered the decision a result of unfair procedure. It was also contrary to the CPU guidelines. Resultantly, the Court holds that the exclusion of the Petitioner's tender was unfair and arbitrary.

It is well settled that while exercising judicial review, the Court should also be circumspect in contractual matters as quashing decisions can result in unforeseen economic consequences. As a result, the appropriate course would be not to set aside or quash the tender proceeding, but only the decision to reject the Petitioner's bid. Therefore, IOL's decision to reject the Petitioner's bid is quashed; consequently, the said bid shall be considered on its merits, having regard to the tender terms and provisions of law. The writ petition is allowed.

Tags : Bid Rejection Validity

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High Court of Delhi

Sunil and Ors. Vs. State

MANU/DE/0825/2018

26.02.2018

Criminal

Suspicion howsoever strong cannot substitute proof

Present appeals are against the judgment passed by the learned Additional Sessions Judge arising out of FIR registered at Police Station ('PS'), convicting the Appellants for the offences under Sections 34 and 363 of Indian Penal Code, 1860 (IPC), Sections 377 and 511 of IPC read with Section 34 of IPC and Sections 34 and 302 of IPC. The appeals are also directed against the order on sentence.

The DNA analysis could, at best, be a corroborative piece of evidence and could not be considered to be a substantive piece of evidence. The unreliability of this evidence is apparent in the present case. While the FSL report dated 16th April, 2014 stated that, the DNA profile could not even be generated from the degraded semen stain, the second report dated 30th May, 2014 stated the opposite.

From the orders in the trial proceedings, it is plain that the trial judge was very concerned that the DNA evidence was not presented before the Court even till 20th March, 2014 although the prosecution evidence had been closed on the first day itself i.e. 23rd May, 2013. This anxiety on the part of the trial Judge led her into placing undue reliance on this evidence to hold that, it conclusively connected the accused with the crime.

In State of Tamil Nadu v. Rajendran, the Supreme Court held that, in a case of circumstantial evidence, the cumulative effect of all the circumstances proved, must be such as to negative the innocence of the accused and to bring home the charge beyond reasonable doubt. It has been held by a series of decisions of this Court that, the circumstances proved must lead to no other inference except that of guilt of accused.

In Brajesh Mavi v. The State, the Supreme Court observed that, not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime.

The medical evidence showed no sign of any attempt at unnatural sex with the deceased much less an attempt at such act. Further, certain vital pieces of evidence like the CDRs of the mobile phones used by PW-15 and the accused was not developed and this constituted a serious lapse in the investigation. There was also no evidence whatsoever, that the accused forcibly abducted the victim so as to attract the offence of kidnapping under Section 363 of IPC.

Finally, the prosecution has also failed to prove the motive for the crime. The inference drawn by the trial Court that, the victim put up a stiff resistance to his being sodomised is not supported one bit by the medical evidence or for that matter, any other evidence. In a case of this nature, when all other circumstances have not been satisfactorily proved, the failure to prove motive adds to the doubt created about the guilt of the accused.

The circumstances proved do not form a complete chain. Those that have not been satisfactorily proved or not proved make it difficult for the Court to conclude that the circumstances proved point unerringly to the guilt only of the two accused and no one else. It is trite that, suspicion howsoever strong cannot substitute proof.

There has been a serious miscarriage of justice as a result of the manner of conducting the trial by the earned trial Judge. The Court grants both accused the benefit of doubt and acquits them of the offences under Section 363/34 of IPC, Sections 377/511 read with Section 34 of IPC and Sections 302/34 of IPC. The impugned judgment of the trial Court and the subsequent order on sentence are set aside. The accused are directed to be released forthwith unless wanted in some other case. The appeals are allowed.

Relevant

State of Tamil Nadu v. Rajendran MANU/SC/0606/1999
: (1999) 8 SCC 679, Brajesh Mavi v. The State MANU/SC/0514/2012
: (2012) 7 SCC 45

Tags : Conviction Circumstantial evidence Proof

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Supreme Court

Jagdish Vs. Mohan and Ors.

MANU/SC/0209/2018

06.03.2018

Motor Vehicles

Benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals

In present case, the Appellant was injured in a motor accident. The Tribunal awarded compensation of Rs. 12,81,228 for the injuries suffered by him. The High Court enhanced the award of compensation by an amount of Rs. 2,19,000. Interest of 7.5 per cent per annum has been awarded from the date of the filing of the claim. The Appellant seeks an enhancement of compensation. The Appellant was 24 years of age when the accident took place on 24th November, 2011. The accident occurred when the Appellant and another person were riding on a motor cycle.

A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. If the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.

The accident took place on 24th November, 2011. The Appellant was a skilled carpenter and self-employed. The claim of the Appellant that, his earnings were Rs. 6,000 per month cannot be discarded. This claim cannot be regarded as being unreasonable or contrary to a realistic assessment of the situation on the date of the accident.

In the judgment of the Constitution Bench in Pranay Sethi, present Court has held that, the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40 per cent of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the Appellant would be entitled to an enhancement of Rs. 2400 towards loss of future prospects.

In making the computation in the present case, the Court must be mindful of the fact that, the Appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that, a loss of hands is a complete deprivation of the ability to earn. Nothing-at least in the facts of this case-can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being.

The Tribunal has noted that, the Appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90 per cent. The disability is indeed total. Having regard to the age of the Appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the Appellant on account of the loss of income, including future prospects, would be Rs. 18,14,400. In addition to this amount, the Appellant should be granted an amount of Rs. 2 lakhs on account of pain, suffering and loss of amenities.

The amount awarded by the Tribunal towards medical expenses (Rs. 98,908); for extra nourishment (Rs. 25,000) and for attendant's expenses (Rs. 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The Appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The Appellant is thus awarded a total sum of Rs. 25,38,308 by way of compensation. The Appellant would be entitled to interest at the rate of 9 per cent per annum on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal and shall be paid over to the Appellant upon proper identification. The appeal is accordingly allowed.

Relevant

National Insurance Co. Limited v. Pranay Sethi MANU/SC/1366/2017
: (2017) 13 SCALE 12

Tags : Award Compensation Enhancement

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Supreme Court

Jagdish Kumar Sood Vs. United India Insurance Co. Ltd. and Ors.

MANU/SC/0208/2018

06.03.2018

Motor Vehicles

“Light Motor Vehicle" would include a transport vehicle as per the weight

The Motor Accident Claims Tribunal allowed a claim for compensation filed by the third Respondent. The claim arose from the death of the husband of the Claimant on 4th January, 2009 as a result of an accident caused by a collision with an offending truck. The Tribunal awarded an amount of Rs. 4,08,000 together with interest at 6 per cent per annum. In an appeal filed by the third Respondent the High Court enhanced the compensation to Rs. 8,04,000. Interest @ 7.5 per cent per annum was awarded on the enhanced compensation.

The Tribunal absolved the insurer on the ground that, the vehicle involved in the accident was a Light Goods Vehicle. The driver had a licence to drive the Light Motor Vehicle. The Tribunal held that, in the absence of a specific authorization to drive a transport vehicle, the liability could not be fastened on the insurer. The Tribunal directed the insurer to pay in the first instance and allowed it to recover the compensation from the driver and the owner. The present appeal has been filed by the owner.

The High Court, while enhancing the compensation did not interfere with the order of the Tribunal absolving the insurer. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of present Court in Mukund Dewangan v. Oriental Insurance Co. Limited in which it has been held that, "Light Motor VEHICLE" as defined in Section 2(21) of the Motor Vehicles (Amendment) Act, 1994 would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48) of Act. Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a road roller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or road roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.

The appeal is allowed, the order of the Tribunal absolving the insurer shall accordingly stand set aside. The liability shall jointly and severally be fastened on the insurer, in addition to the owner and driver.

Relevant

Mukund Dewangan v. Oriental Insurance Co. Limited (2017) 14 SCC 663

Tags : Award Compensation Liability

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High Court of Madras

State Vs. S. Bose and Ors.

MANU/TN/1025/2018

02.03.2018

Criminal

In bribe cases, it is for the prosecution to prove demand and acceptance beyond reasonable doubt

The Appellants 1 & 2 were tried before the learned Assistant and Sessions Judge-cum-Chief Judicial Magistrate, on the allegation that, on 5th April, 2002, first Respondent who was working as sub inspector of survey received illegal gratification of Rs. 500 through the second Respondent from the de facto complainant. The first respondent was charged for the offence under Section 7 of the Prevention of Corruption Act, 1988 while the second Respondent was charged for the offence under Section 7 of the Prevention of Corruption Act, 1988 read with Section 34 of Indian Penal Code, 1860 (IPC) and both the Respondents were tried for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. The Trial Court found that, the prosecution has not proved its case beyond reasonable doubt and therefore, giving the benefit of doubt to both the respondents and they were acquitted from the charges. Aggrieved against the judgment of the Trial Court, the State has preferred the present appeal.

In instant case, PW-2, being the only eye-witness to the occurrence and also being the defacto complainant under whose instance trap proceedings was arranged has not supported the case of the prosecution. Hence, the prosecution has not substantiated the charges against the Respondents/A1 and A2 before the trial Court. Therefore, under these circumstances, the trial Court has acquitted the Respondents/accused.

The Supreme Court in V. Sejappa vs. State by Police Inspector Lokayukta, Chitradurga, held that, while dealing with the contention that, it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification.

The acid test, which is required in trap cases of receipt of illegal gratification is the phenolphthalein test. In the present case, the money, said to have been recovered from a register which was kept on the table of the first respondent, gave a positive reaction to phenolphthalein. However, the officials of the Vigilance and Anti Corruption have not made any effort to find out whether the hands of the first respondents/accused showed positive reaction for phenolphthalein. Without there being conclusive proof of positive reaction in the hands of the first Respondent for phenolphthalein, the Respondent cannot be held responsible for the money that was recovered from the table of the first Respondent. Even P.W.2 has spoken that, he gave the money to the second Respondent, after receiving money from him and in turn the second Respondent kept the money in the register which was kept on the table of the first Respondent. It cannot be inferred that the money, that was kept on the table of the first respondent was for the purpose of giving the same as illegal gratification to the first Respondent.

Without there being documentary evidence to prove that the money, that was placed on the table of first respondent was towards illegal gratification to first respondent and there being no proof that first respondent received the money, the prosecution has miserably failed to bring home the charge against first respondent. The decision in Sejappa's case relied on by Respondents is squarely applicable to the facts of the present case.

Similarly, the charge against second respondent under Section 7 of the Prevention of Corruption Act read with Section 34 of IPC cannot be sustained, in the absence of proof of demand, acceptance and recovery directly from the respondents. Mere oral evidence stating that the Respondents had asked for illegal gratification for which the trap was set through the officials of Vigilance and Anti Corruption in the absence of documentary evidence coupled with ocular testimony, the Respondents cannot be held guilty of either receiving illegal gratification or for second Respondent having channelised the bribe to first Respondent.

It is the cardinal principle in bribe cases is that, it is for the prosecution to prove demand and acceptance beyond reasonable doubt. In present case, neither the documentary evidence nor the ocular testimony supports the case projected by the prosecution. When the trial Court has acquitted the Respondents on the ground that, the demand of bribe has not been proved beyond reasonable doubt and extended the benefit of doubt to the Respondents, in the absence of the prosecution substantiating the contention through requisite evidence before this Court, present Court cannot find any error in the judgment passed by the trial court acquitting the Respondents. The judgment of acquittal passed by trial Court is confirmed and the appeal is dismissed.

Relevant

V. Sejappa vs. State by Police Inspector Lokayukta, Chitradurga [MANU/SC/0494/2016
: AIR 2016 SC 2045]

Tags : Illegal gratification Proof Acquittal

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High Court of Madras

Leitwind Shiram Manufacturing Limited Vs. The Assistant/Deputy Commissioner of Customs (Gr. 4) and Ors.

MANU/TN/1040/2018

01.03.2018

Customs

Date of filing of Bill of Entry for home consumption is the relevant date for levy of Duty, including Anti Dumping Duty

The Petitioner has filed the Writ Petition to issue a Writ of Certiorarified mandamus calling for the records connected with the Seizure Memo dated 4th October, 2017 issued by the 4th Respondent and to quash the same, insofar as the said Seizure Memo issued is without jurisdiction and consequently direct the Respondents to allow the clearance of the goods covered under Ex-Bond Bill of Entry dated 31st August, 2017 without requiring the payment of Anti Dumping Duty under Notification dated 11th May, 2017.

The goods declared as Hot Rolled Painted Steel Plates imported, vide Ex-Bond Bill of Entry dated 31st August, 2017, by the Petitioner, were attempted to be cleared by evading payment of Anti Dumping Duty, was intercepted by the Special Intelligence and Investigation Branch (SIIB), Customs House, Chennai. The Petitioner has self-assessed the goods under the Customs Tariff Item 7225 40 19 and paid the applicable Duty, except Anti Dumping Duty. The Petitioner had originally filed the Warehouse Bill of Entry dated 22.01.2016 for clearance of 55.07.403 MTs of Steel Plates and Warehoused goods. Subsequently, they filed the subject Ex-Bond Bill of Entry for clearance of 878.395 MTs of Warehoused goods.

The Government of India imposed provisional Anti Dumping Duty, vide Anti Dumping Duty Notification dated 8th April, 2016, on Hot Rolled flat products of Alloy or non-Alloy Steels in Coils as well as Steels not in Coils of width 4950 mm and thickness 150 mm of China, Korea, Japan and Indonesian origin. The said Notification was in existence between 8th August, 2016 and 8th April, 2017. Thereafter, the Government of India issued final Anti Dumping Duty Notification dated 11th April, 2017 and as per the said Notification, the subject imported item falling under Sl. No. 36 wherein the Reference Value of USD 561 per MT is stipulated. As per the Anti Dumping Duty Notification, the Reference Value minus the Landed Value of the goods is chargeable as Anti Dumping Duty. Based on the above uncontested detail, on verification of the duty liability, it was noticed by the Respondents that, 878.395 MTs of Hot Rolled Painted Steel Plates covered under Ex-Bond Bill of Entry dated 31st August, 2017 are liable to Anti Dumping Duty leviable under Notification dated 11th May, 2017.

As per para 2 of the Manual on Self-Assessment, it could be seen that, penal provisions have to be invoked against the importers/exporters for errors in self-assessment when there is willful intention to evade Duty or non-compliance of a condition. While filing the self-assessment, the Petitioner did not declare the Anti Dumping Duty Notification and also without Safe Guard Duty. The petitioner has not taken any steps to correct the self-assessment or brought it to the notice of the Customs Officials. The Respondents brought it to the notice of the Petitioner that, the Notification issued by the Government of India dated 11th May, 2017 will be applicable to their case. Inspite of the summons issued to the Petitioner under Section 108 of the Customs Act, they failed to co-operate for investigation and also failed to appear before the proper Officer for enquiry.

The seizure of goods was effected under Section 110 of the Customs Act, 1962. The 4th respondent had reason to believe that, the Petitioner evaded payment of Anti Dumping Duty, therefore, effected seizure of goods under Section 110. It is settled position that the date of filing of Bill of Entry for home consumption is the relevant date for levy of Duty, including Anti Dumping Duty. As per Section 15(1)(b) of the Customs Act, in the case of goods cleared from a Warehouse under Section 68, the rate of Duty and Tariff valuation, if any applicable to any imported goods, shall be the rate and valuation in force on the date on which a Bill of Entry for home consumption in respect of such goods is presented under that Section. Admittedly, the goods covered under the impugned Seizure Memo were not cleared out of Customs.

The contention of Petitioner that, the Anti Dumping Duty cannot be levied retrospectively, cannot be accepted for the reason that the date of filing of Bill of Entry for home consumption is the relevant date for levy of Duty, including Anti Dumping Duty. The levy of Anti Dumping Duty under the Notification dated 11th May, 2017 is applicable to the goods cleared under the Ex-Bond Bill of Entry dated 31st August, 2017.

The Respondent should issue a notice under Section 110(2) within six months of the seizure and if the Respondent failed to issue the notice within the time prescribed under Section 110(2), the goods shall be returned to the person from whose possession they were seized. Therefore, the Respondents still have got time to issue notice to the petitioner under Section 110(2) of the Customs Act. If the Petitioner is aggrieved over the notice, they can challenge the same in accordance with law. There is no error or irregularity in the Seizure Memo issued by the 4th Respondent. The Writ Petition is dismissed.

Tags : Goods Clearance Duty Evasion

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