High Court of Allahabad

The Oriental Insurance Company Ltd. Vs. Munna Lal Agrawal and Ors.

MANU/UP/4238/2018

17.11.2018

Motor Vehicles

In a case of composite negligence where liability is joint and several, it is choice of claimants to claim compensation from either of tortfeasor

Instant appeals arise out of the same accident. Tribunal fastened the entire liability upon the Insurance Company to pay compensation on the ground that, it was a case of composite negligence not a contributory negligence. Issue involved in present matter is regarding the sustainability of award passed by Tribunal.

The Tribunal was right in fastening entire liability upon the Insurance Company to pay compensation in the Claim Petition. It is settled in law that, in a case of composite negligence where the liability is joint and several, it is choice of the claimants to claim compensation from either of the tortfeasor. In the instant case, the claimant has chosen to claim compensation from the Mini Truck and as such there is no infirmity in the finding of the Tribunal on the issue of negligence.

The submissions of the counsel for the Appellant in respect of driving licence that, the driver of Truck was not authorized to drive transport vehicle, as he was driving a transport vehicle has no substance in view of the judgment of the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, wherein the Apex Court has held that ,if a light motor vehicle falls in the category of transport vehicle, to drive such a vehicle, no endorsement by the licensing authority on the driving licence authorizing him to drive transport vehicles is required. Thus, the submissions on the issue of driving licence are rejected. Appeals dismissed.

Relevant

Mukund Dewangan vs. Oriental Insurance Company Limited MANU/SC/0797/2017

Tags : Negligence Compensation Entitlement

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Supreme Court

Vimla Devi and Ors. Vs. National Insurance Company Limited and Ors.

MANU/SC/1290/2018

16.11.2018

Motor Vehicles

A procedural lapse could not be made basis to reject claim petition

Present appeal is filed by the claimants against the final judgment passed by the High Court whereby the High Court dismissed the appeal filed by the claimants and affirmed the award passed by the Tribunal. By award, the Tribunal held that, the claimants failed to prove the accident for want of evidence and the one adduced was not exhibited and hence was of no use. The claimants felt aggrieved and filed appeal in the High Court. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the claimants in present Court.

The Motor Vehicles Act, 1988 is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.

The Appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending vehicle, which resulted in death of Rajendra Prasad. The Appellants filed material documents to prove the factum of the accident and the persons involved therein. The documents clearly established the identity of the Truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending Truck, the period of coverage of insurance of the Truck, the details of the lodging of FIR in the concerned police station in relation to the accident.

The Appellants examined three witnesses and thereby discharged their initial burden to prove the case. If the Court did not exhibit the documents despite the Appellants referring them at the time of recording evidence then in such event, the Appellants cannot be denied of their right to claim the compensation on such ground. It was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the Appellants adduced oral and documentary evidence to prove their case and the Respondents did nothing to counter them.

The Appellants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that, the offending Truck was insured with Respondent No. 1 at the time of accident and was owned by Respondent No. 3. Impugned order is set aside. The Appellants' claim petition is allowed in part. Respondent No. 1-Insurance Company is directed to deposit the awarded sum within 3 months with the Claims Tribunal for being paid to the Appellants after proper verification.

Tags : Award Compensation Grant

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High Court of Jammu and Kashmir

Mohd. Ashraf and Ors. Vs. State of J&K

MANU/JK/1037/2018

16.11.2018

Criminal

Testimony of an injured witness can be acted upon even without any corroboration as he is having a special status in law

Present Criminal Appeal is preferred by the Appellants who have been convicted by the learned Sessions Judge, vide impugned judgment and sentenced to undergo rigorous imprisonment for a term of three years under Sections 324/34 of Ranbir Penal Code (RPC) and to pay fine of Rs. 5000 each and in default of payment of fine, the accused would further suffer rigorous imprisonment for one year. Whether the argument of counsel for Appellants that, all the witnesses are related witnesses and their statements cannot be relied is tenable.

The fact that the witnesses are related to each other is no ground for disbelieving their evidence. There is no general rule that the evidence of the relations of the victim, must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances. In present case, PWs Mohd. Zahrid, Mohd. Kabir and Faizu Khan are not only eye witnesses and related witnesses, but also are injured witnesses. A witness who himself becomes a victim to the crime is better capacitated to narrate the sequence of the crime scene. Minor discrepancies and omissions pointed out in their evidence did not shake their trustworthiness. Testimony of said witnesses did not deserve to be discarded on this sole ground of relationship. The injury to the witness is an in-built guarantee of his presence at the scene of the crime. The deposition of the injured witnesses should be relied upon, unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies.

The Evidence of the hostile witness cannot be discarded as the relevant fact of the statement is admissible; corroborated part of evidence of hostile witness regarding the commission of offence is admissible. It has no justification to reject his evidence as a whole. The credibility of hostile witness can form the basis of conviction. Admittedly, in the case I/O has not been examined. Court below has relied upon Raj Kishore Jha vs. State of Bihar and Ors., Bahadur Naik vs. State of Bihar, wherein it is held that, non examination of I/O. in each case is not fatal unless prejudice is caused and when defense has failed to shake credibility of witnesses. Defence has failed to shake credibility of witnesses. No prejudice has been caused.

There is no infirmity of law and facts in the judgment of Court below. However, Appellants have been awarded 3 years imprisonment each under Section 324 of RPC, which is maximum under this section; but taking in view the fact that occurrence had taken place in the year 1994 and accused have faced trauma of trial upto 2004 before trial court for ten years and the present appeal is pending since 14 years, these are mitigating circumstances for imposing lesser sentence of 1 year instead of three years under Section 324 of RPC. Imprisonment already undergone shall be set off. Sentence of fine is upheld. Appeal disposed off accordingly.

Relevant

Raj Kishore Jha vs. State of Bihar and Ors. MANU/SC/0783/2003
; Bahadur Naik vs. State of Bihar MANU/SC/0405/2000

Tags : Conviction Legality Witnesses Credibility

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National Consumer Disputes Redressal Commission

Bharat Sanchar Nigam Ltd. Vs. Aarogyasri Health Care Trust

MANU/CF/0770/2018

15.11.2018

Consumer

Even if a party successfully shows sufficient cause, still party is not entitled for condonation of delay as a matter of right

The present revision petition has been filed against the order passed by State Commission in First Appeal. Alongwith this revision petition, an application for condonation of delay of 211 days in filing the present revision petition has also been filed.

It is apparent that, only ground is that delay had occurred due to completion of in-house formalities before taking a decision of challenging the order of Appellate Court. There is no doubt that, while dealing with the matters relating to Revision Petition and Appeal, a liberal attitude has to be adopted by the Courts while dealing with the application for condonation of delay in filing said appeals or revision petitions. It is, however, the bounden duty of the applicant to explain convincing reasons for such delay and also show sufficient and reasonable cause for such delay.

Hon'ble Supreme Court in " Ram Lal and Ors. v. Rewa Coalfields Limited, has clearly held that even if a party successfully shows sufficient cause, still the party is not entitled for condonation of delay as a matter of right. The Courts still retains the discretion to dismiss the application, observing the bonafides of the parties.

There is no doubt that petitioner is a Public Undertaking. Being public undertaking, the petitioner is under special obligation to observe the law framed by the government. Hon'ble Supreme Court in the case of "Post Master v. Balram Singh Patel Inaram Lodhi, III" has held that, "The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments."

The in-house delay in getting the sanction for filing the revision petition by no stretch of imagination can be considered sufficient reasons for condoning the delay. The Department ought to have acted faster knowing well that there is special period of limitation provided in the said Act i.e. Consumer Protection Act.

The reasons given in the application does not justifiably and reasonably explains the reasons necessitating the condonation of delay of 181 days. Application for condonation of delay is, accordingly, dismissed. As a consequence, Revision Petition is also dismissed as barred by limitation.

Relevant

Ram Lal and Ors. v. Rewa Coalfields Limited, MANU/SC/0042/1961
, Post Master v. Balram Singh Patel Inaram Lodhi

Tags : Delay Condonation Grant

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Customs, Excise and Service Tax Appellate Tribunal

Vandana Global Limited Vs. C.C.E., Raipur

MANU/CE/0518/2018

15.11.2018

Excise

Transaction value is a normal price at which such goods are ordinarily sold by Assessee to a buyer where buyer is not related persons and price is sole consideration

The Appellants are engaged in manufacture of sponge iron, ingots, billets and silicon manganese. They are availing the credit of Cenvat duty paid on inputs, capital goods and Service Tax paid on input services in terms of Cenvat Credit Rules, 2004 (CCR). During course of scrutiny, Department noticed that, the Appellants were transferring the manufactured Silico-manganese to their Depot for further sales to their customers. However, they were paying duty at the time of removal. The Department alleged that, the Appellants were not discharging their duty liability on finished goods so cleared through Depot as per the provisions of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2007. The demands e were proposed vide the show cause notices. The said demands have been confirmed.

The Appellants were transferring the Silicon Manganese so manufactured by them to their Depot for further sales to their customers but were paying duty at the time of removal. The question for adjudication therefore is as to whether the Appellants have paid the duty at the time of removal from the factory with intention to resort to under valuation of excisable goods and with intent to evade the payment of respected cenvat duty for the respective period in dispute.

Section 4(c) of CEA defines place of removal. The bare perusal of provisions makes it clear that, the place of removal is not merely confined to the factory/the place of manufacture but also includes a warehouse and even a Depot provided no duty at the time of shifting was paid and that the goods are sold after their clearance from the factory but from the place from where such goods are removed.

It is apparent and admitted fact that, before removing goods from the Appellants factory in Raipur to their Depot in Nagpur, the Appellants have paid the Excise Duty. In the given scenario the definition of transaction value acquires importance for the adjudication. Section 4 (d) of CEA defines transaction value.

The value is a normal price that is the price at which such goods are ordinarily sold by the assessee to a buyer where the buyer is not the related persons and the price is the sole consideration as it was held by Apex Court in the case of Tata Iron and Steel Co. Ltd. v. Collector of Central Excise.

Rule 7 is invokable only in the case where the goods are not sold by the manufacturer/assessee from the factory, which basically is the place of removal. It is in that case only that the transaction value has to be considered as the value at which the manufactured product is sold from the Depot to its buyer. That too, at or about the same time. The Silicon Manganese is simultaneously sold from the factory/place of manufacture itself that too the major portion of the manufacture and it is only the part produced which has been shifted to Depot for further sale to the buyers. The question of invoking Rule 7 of Valuation Rules, 2000 is absolutely irrelevant and also illegal.

Department has wrongly invoked Rule 7 of Valuation Rules. The transaction value in the present case is the value at which the Silicon Manganese has been sold by the Appellant at its factory gate, while transferring the unsold portion thereon to the Depot. Apparently and admittedly, the excise duty has been paid by the Appellant at the said value. The question of alleged short payment does not arise. The orders under challenge are therefore, set aside. The appeals are allowed.

Tags : Demand Confirmation Validity

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Supreme Court

P.E.C. Limited Vs. Austbulk Shipping SDN BHD

MANU/SC/1301/2018

14.11.2018

Arbitration

At initial stage of filing of an application for enforcement, non-compliance of production of documents should not entail in dismissal of application

In present matter, the judgment of the High Court directing enforcement and execution of a foreign award is challenged. The High Court rejected the submissions made on behalf of the Appellant that, there was no arbitration agreement. Issue raised in present matter is whether an application for enforcement under Section 47 of the Arbitration and Conciliation Act, 1996 is liable to be dismissed if it is not accompanied by the arbitration agreement and that, whether there is a valid arbitration agreement between the parties and what is the effect of a party not signing the Charter Party.

The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, Supreme Court is of the view that, the word "shall" in Section 47 of the Act has to be read as "may". At the initial stage of filing of an application for enforcement, non-compliance of the production of the documents mentioned in Section 47 of Act should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect of non-filing of the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings.

There would be no prejudice caused to the party objecting to the enforcement of the Award by the non-filing of the arbitration agreement at the time of the application for enforcement. In addition, the requirement of filing a copy of the arbitration agreement under the Model Law which was categorized as a formal requirement was dispensed with. Section 48 which refers to the grounds on which the enforcement of a foreign award may be refused does not include the non-filing of the documents mentioned in Section 47 of Act. An application for enforcement of the foreign award can be rejected only on the grounds specified in Section 48 of Foreign Awards (Recognition and Enforcement) Act, 1961. The requirement to produce documents mentioned in Section 47 at the time of application was not intended to be mandatory.

Further, there is no dispute that the contract is governed by the English law under which there is no requirement for the Charter Party to be signed by the parties to make it binding. Abundant material was examined by both the Arbitrator and the High Court to record a finding that, there existed a valid arbitration agreement. Article II of the First Schedule of the Act defines arbitration agreement as including an arbitral Clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The High Court found that, the Charter Party which contained the arbitration agreement was agreed to and entered upon by the parties and the same is supported by the correspondence between the parties.

The term "agreement in writing" in Article II is very wide. An arbitral Clause need not necessarily be found in a contract or an arbitral agreement. It can be included in the correspondence between the parties also. In the present case, the arbitration agreement is found in the Charter Party which has been accepted by both the Arbitrator and the High Court. The judgment of the High Court is upheld and the appeal is dismissed.

Tags : Award Enforcement Direction

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