10 February 2020


Judgments

Supreme Court

Canara Bank v. M/s United India Insurance Co. Ltd. & Ors

MANU/SC/0131/2020

06.02.2020

Insurance

Beneficiaries of policy taken out by insured are also consumers under Consumer Protection Act, 1986, even if, they are not parties to contract of insurance

The facts of the case are, claimants, referred to as ‘the farmers’, had grown Byadgi Chilli Crop during the year 2012­2013. These farmers had stored their agricultural produce in a cold store run by a partnership firm and also obtained loans from Canara Bank. The loan was advanced by the Bank to each one of the farmers on security of the agricultural produce stored in the cold store. The cold store was insured with the insurance company. A fire took place in the cold store and entire building of the cold store and the entire stock of agricultural produce was destroyed.

The case of the farmers was that in terms of the tripartite agreement, the cold store had got the stocks insured from the insurance company. The fire was an accidental fire and, therefore, in terms of the policy, the insurance company was liable to pay the amount of value of the agricultural produce stored with the cold store as on the date of fire and was also liable to pay interest on the amount payable. The insurance company resisted the complaint mainly on the ground that, the ‘farmers’ were not ‘consumers’ within the meaning of Consumer Protection Act, 1986. It was also claimed that there was no privity of contract between the farmers and the insurance company because the policy was taken by the cold store and not by the farmers.

The State Commission vide judgment held that the farmers had proved that the fire took place on account of electrical short circuit and no element of human intervention or use of kerosene was found. The State Commission also found that as per the tripartite agreement entered into between the farmers, the Bank and the cold store, it was mandatory for the cold store to insure the goods so hypothecated by the farmers with the Bank. The insurance company was held liable to pay the amount to the farmers. The cold store and the insurance company were held jointly and severely liable.

Aggrieved by the aforesaid judgment of the State Commission, an appeal was filed before the National Commission. By the impugned judgment, the National Commission concurred with the findings of the State Commission and held that the farmers are consumers. It held that the insurance company was aware of the fact that the goods were held in trust. It further held that, there is no evidence to show that the fire was not an accidental fire or that the fire had been started by the owner of the cold store. However, it partly allowed the appeal of the insurance company and reduced the interest from 14% per annum to 12% per annum.

The definition of consumer under the Act is very wide and it includes beneficiaries who can take benefit of the insurance availed by the insured. As far as the present case is concerned, under the tripartite agreement entered between the Bank, the cold store and the farmers, the stock of the farmers was hypothecated as security with the Bank and the Bank had insisted that the said stock should be insured with a view to safeguard its interest. The penultimate clause of the tripartite agreement binds the cold store to insure the goods, to indemnify the produce, to cover the risk and cover the loan amount. This insurance policy has to be taken at the cost of the second party which is the farmer. Therefore, there can be no manner of doubt that the farmer is a beneficiary under the policy. The farmer is, therefore, definitely a consumer and the orders of both the Commissions that the complaint under the Act is maintainable are upheld.

As long as the parties to the tripartite agreement i.e. the Bank, the farmer and the cold store, are not disputing the correctness of the agreement, there is no reason why present Court should not accept the same to be a genuine document.

The insurance company itself could have also taken some initiative in the matter. To make a contract void the non­disclosure should be of some very material fact. No doubt, it would have been better if the Bank and the insured had given at least 1 tripartite agreement to the insurance company but, in our view, in the peculiar facts of this case, not disclosing the tripartite agreement or the names of the owners cannot be said to be such a material fact as to make the policy void or voidable. There is no fraudulent claim made. There is no false declaration made and neither is the loss and damage occasioned by any wilful act or connivance of the insured.

The insurance company under the insurance policy is liable to indemnify the cold store with regard to the value of goods and since the farmers are the beneficiaries, they are entitled to get the amount payable under the policy. The insurance policy is a contract and the amount has to be paid as per the terms of the contract.

The insurance company shall be liable to pay to each one of the farmers the value of his goods to be assessed as per the rate mentioned on the warehouse receipts when the goods were stored in the Cold Store in terms of our direction given hereinabove along with interest at the rate of 12% per annum from the date of fire till payment or deposit thereof. Appeals are disposed of.

Tags : Policy Beneficiaries Indemnification

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Supreme Court

Bharat Coking Coal Ltd. and Ors. Vs. Shyam Kishore Singh

MANU/SC/0127/2020

05.02.2020

Service

Request for change of the date of birth in service records at the fag end of service is not sustainable

The Appellants are before present Court assailing the order passed by the Division Bench of the High Court. Through the said order, the Division Bench though has modified the judgment of the learned Single Judge insofar as the extent of relief granted, the contention of the Respondent herein relating to the change of date of birth in the service records is accepted and a direction has been issued to the Appellants to pay the sum equivalent to salary of one year for the period between the April, 2010 to March, 2011.

The learned Single Judge being of the opinion that, the Respondent had passed the matriculation prior to joining the services and in that circumstance, the entry of date of birth in the matriculation certificate being 20th January, 1955 even before joining the service, has accepted the contention put forth by the Respondent and in that background arrived at the conclusion that the Appellants are to be directed to make appropriate corrections and pass consequential orders.

The Division Bench has upheld the said reasoning assigned by the Learned Single Judge. However, the Division Bench had taken note that the Respondent herein had filed the writ petition four years after his retirement for restoration of his employment. It has further taken note that the Respondent had filled up several forms in the course of his services where the Respondent had not disclosed his educational qualification. In that view, the Division Bench was of the opinion that, the learned Single Judge had not properly dealt with the aspect of delay in approaching the Court. In that circumstance the Division Bench had limited the attendant benefits payable to the Respondent to the salary for one year between the period April, 2010 to March, 2011 as prevailing at that point.

The fact that the Respondent had joined the services of the Appellants on 01.03.1982 is the accepted position. Though the Respondent relies on the matriculation certificate to indicate that the date of birth stated therein is 20th January, 1955, there is no material on record to indicate that, the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by the Appellants will disclose that the date of birth indicated in the document is 4th March, 1950 which had been furnished by the Respondent himself as the relevant forms under his signature contain the said date.

Present Court has consistently held that, the request for change of the date of birth in the service records at the fag end of service is not sustainable. This Court in fact has also held that, even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right.

In the instant case, as on the date of joining and as also in the year 1987 when the Respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 4th March, 1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the Respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the Respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the Respondent by the High Court was not justified. In the result, the impugned order is set aside and the appeal is allowed.

Tags : Service records Change Legality

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Supreme Court

Kajal Vs. Jagdish Chand and Ors.

MANU/SC/0126/2020

05.02.2020

Motor Vehicles

Compensation or damages assessed for personal injuries should be substantial to compensate injured for deprivation suffered by injured throughout his/her life

In present case, Kajal was a bright young girl. She used to attend school, play with her friends and lead a normal life like any other child. Unfortunately, on 18th October, 2007, while Kajal was travelling on a tractor with her parents, the tractor was hit by a truck which was driven rashly. In the said accident, Kajal suffered serious injuries resulting in damage to her brain. This has had very serious consequences on her. She was examined at the PGI for assessment of her disability and her disability has been assessed as 100%.

Kajal through her father filed a claim petition, under the Motor Vehicle Act. The Motor Accident Claims Tribunal awarded Rs. 11,08,501 and held that since there was violation of the terms of policy the insurance company would pay the amount but would be entitled to recover the same from the owner. The High Court enhanced the award amount to Rs. 25,78,501. Aggrieved by the award the claimant is before this Court.

The principles with regard to determination of just compensation contemplated under the Act are well settled. Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. Damages can be pecuniary as well as non-pecuniary, but all have to be assessed in Rupees and Paise.

It is impossible to equate human suffering and personal deprivation with money. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages.

The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made.

The claimant cannot come back to Court for enhancement of award at a later stage praying that, something extra has been spent. The Courts or the tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter, when awarding compensation.

The tribunal while awarding the compensation had stated that the amount payable to the share of Kajal would be kept in a Fixed Deposit till she attains the age of 18 years. The High Court while enhancing the amount of compensation has directed that the enhanced amount be paid to the Appellant within 45 days. This is totally contrary to the guidelines laid down by this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors., wherein it has been held clearly that, the amount payable to the minors should not be normally released. The guidelines in present case protects the rights of the minors, claimants who are under some disability and also widows and illiterate person who may be deprived of the compensation paid to them in lump sum by unscrupulous elements. These victims may not be able to invest their monies properly and in such cases the MACT as well the High courts must ensure that investments are made in nationalised banks to get a high rate of interest.

The High Court was not right in awarding interest on the enhanced amount only from the date of filing of the appeal. Normally, interest should be granted from the date of filing of the petition and if in appeal enhancement is made, the interest should again be from the date of filing of the petition. It is only if the appeal is filed after an inordinate delay by the claimants, or the decision of the case has been delayed on account of negligence of the claimant, in such exceptional cases the interest may be awarded from a later date. However, while doing so, the tribunals/High Courts must give reasons why interest is not being paid from the date of filing of the petition. Therefore, the entire amount of compensation including the amount enhanced by present Court shall carry an interest of 7.5% per annum from the date of filing of the claim petition till payment/deposit of the amount. The appeal is disposed of.

Tags : Compensation Enhancement Eligibility

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High Court of Delhi

GULFAM @ ZAHOOR v. STATE

MANU/DE/0312/2020

03.02.2020

Criminal

A paper-cutter is a 'deadly weapon' to secure a conviction for committing robbery with an attempt to cause death

The Appellant has filed the present appeal impugning a judgment, whereby he was convicted for the offences punishable under Sections 392/397 of the Indian Penal Code, 1860 (IPC). The case of the prosecution is that, the Appellant committed the robbery of a mobile phone belonging to the complainant and during this incident, the Appellant used a weapon – a paper cutter. Thereafter, certain public persons apprehended the Appellant and gave him beatings. Consequently, FIR under Sections 397/392 of the IPC was registered with PS Seelam Pur, thus setting criminal law into motion.

The evidence on record clearly establishes that, the Appellant had used the paper cutter for the purposes of robbing the complainant’s mobile phone. There are minor inconsistencies in the testimony of the complainant; however, the same are not material. The learned counsel appearing for the Appellant also did not seriously canvas that, the Appellant was not involved in the incident, as described by the complainant and as found by the Trial Court. In view of the above, the only question that needs to be addressed is whether the use of the paper cutter in committing the robbery would justify the appellant being punished under Section 397 of the IPC.

There is a divergence of opinion in various decisions of this Court as to whether it was necessary to establish that a knife is a deadly weapon. One line of cases follows the view that the question whether a knife is a deadly weapon is to be determined by various factors, including the design of a knife and the manner in which it was used. There was yet another line of cases where this Court had taken a view that a knife of any description is, still, a knife and the same is a deadly weapon. In Phool Kumar v. Delhi Administration, the Supreme Court had observed that the appellant therein had a knife in his hand and “he was, therefore, carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them.”.

It is also relevant to refer to the decision of the Supreme Court in Ashfaq v. State (Govt. of NCT of Delhi), wherein the Supreme Court had approved the findings of the Court below that “a knife is equally a deadly weapon, for purposes of Section 394 IPC”.

A paper cutter is also a species of knife as, it has a handle and a blade. Although, it is meant for a specific purpose of cutting paper, there is no denying the fact that its blade is very sharp and is capable of delivering a fatal injury. In the present case, the paper cutter had been placed on the complainant’s neck. Undeniably, a deep cut on the neck – which could be easily inflicted by the said instrument – could be fatal. Indisputably, such an instrument used as a weapon and placed on the neck of a victim is sufficient to terrorize a victim into yielding under fear of an injury. In the given circumstances, this Court is not persuaded to accept that that use of a paper cutter in committing robbery did not invite a punition under Section 397 of the IPC. The appeal is unmerited and is, accordingly, dismissed.

Tags : Robbery Conviction Legality

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High Court of Delhi

Inder Pal and Ors. Vs. State

MANU/DE/0320/2020

31.01.2020

Criminal

The motive part loses its significance, when there is trustworthy evidence of witnesses as to commission of an offence

Present appeal is directed against judgment and order of sentence passed by the learned Additional Sessions Judge, whereby the learned Sessions Judge found the Appellants-accused guilty under Section 304 Part II read with Section 34 as well as Section 308 read with Section 34 of the Indian Penal Code, 1860 (IPC).

Learned counsel for the Appellants opened his submissions contending that, the witnesses examined by the prosecution to establish its case are interested witnesses and their testimonies cannot be relied upon to convict the present Appellants. The counsel for the appellants further argued that the trial court failed to take into consideration the contradictions and improvements in the testimonies of the prosecution witnesses. During the course of arguments, an apprehension was expressed by the learned counsel for the Appellants that motive is of paramount importance and absence of motive, in a case of direct or circumstantial evidence is critical to the version of the prosecution.

However, in the present case, there is enough evidence to show that the incident took place due to trivial issue of flow of water from the house of the complaint in the drain because of which foul smell was emanating. Moreover, in the present case the conviction passed against the appellants is under Section 304 Part II whereby the circumstances show that the incident took place due to sudden quarrel hence, the argument raised by the learned counsel for the Appellants in relation to motive is of no significance.

However, it is a settled legal proposition that even if the absence of motive as alleged, is accepted, the same is of no consequence and pales into insignificance, when direct evidence establishes the crime. Therefore, in case, where there is trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. In the present case also, there is direct and reliable evidence in relation to occurrence of the incident, hence, not proving the motive for commission of the offence does not hold much relevance.

Placing reliance on the testimonies of PW-1, PW-2 and PW-3, read along with the medical evidence on record, the prosecution has been able to establish that, it was due to the acts of the Appellants committed in furtherance of the common intention of both, the death of the deceased and the injuries on the person of PW-1, PW-2 and PW-3 took place.

The prosecution having proved its case beyond all reasonable doubt, there is no infirmity in the judgment passed by the learned Trial Court. The conviction of the appellants under section 304 Part (II) read with Section 34 of the IPC and Section 308 read with section 34 of the IPC is upheld. Accordingly, the appeal is dismissed.

Tags : Conviction Evidence Credibility

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High Court of Tripura

Shyamal Kar and Ors. Vs. Agartala Municipal Corporation and Ors.

MANU/TR/0054/2020

31.01.2020

Tenancy

Tenants do not have unlimited right to continue to enjoy tenancy in perpetuity

Petitioner has challenged an order under which he has been granted a period of seven days by the Assistant Commissioner of Agartala Municipal Corporation (AMC) to vacate a stall occupied by the Petitioner situated on the southern end of MG Bazaar (West) pond area.

The Petitioner is occupying commercial premises in the shape of a stall given to the Petitioner on rent by AMC. The Petitioner pays periodic rent for such occupancy. The Petitioner is running a business of selling medicines from the said place since long.

According to the AMC, in order to develop MG Bazaar (West) pond area and in order to facilitate approach road, parking space and easy access to fire service vehicles in the area, it was necessary to remove the encroachments which had over a period of time cropped up at the edge of the lake as also to cancel fully or partially certain toujis granted to the individual businessman at the said site. The Petitioner's stall is situated at the southern edge of the lake and was one of the several structures which the corporation intended to remove in order to achieve the above stated purpose. After issuing the notice to the petitioner and granting hearing, impugned order dated 16th September, 2019 came to be passed.

The Tripura Municipal Act, 1994 contains Chapter-XII pertaining to Municipal markets and slaughter houses. Section-181 contained in the said chapter envisages that, the Municipality may provide and maintain Municipal markets, slaughter houses or stockyards in such manner as it may think fit together with stalls, shops, sheds and other buildings and conveniences for the use of persons carrying on trade or business in or frequenting such markets or slaughter houses. Sub-section 1 of Section 182 of the Act provides that, no person shall without the general or special permission in writing of the Municipality, sell or expose for sale any commodity or article or animal or bird in any Municipal market or utilize such space within the Municipal market for any other purpose.

Section-183 of the Act provides that the Municipality may charge such premium, stallage, rent or fees as may, from time to time, be fixed in this behalf for the occupation or use of any stall, shop, stand, shed or open space in a Municipal market or Municipal slaughter houses.

The Petitioners who are tenants of the AMC, have no unlimited right to continue to enjoy such tenancy in perpetuity. When larger public interest bona fide demonstrated by the AMC require eviction of some of the occupants, no vested rights are demonstrated which would prevent the AMC from cancelling the tenancy and seeking eviction of the premises.

The Petitioners have not thus made out any case of the AMC acting under the directorates of the State Government and without the concurrence of the Mayor of the corporation. Since all the Petitioners have been doing their small businesses from small establishments in Municipal market area since decades, they would have at least legitimate expectation of being resettled elsewhere and to that extent, the petitioners can make a case. However, from the inception, the corporation has shown willingness to resettle the Petitioners. The proposal for cancellation of touji and eviction of the occupants itself contains such a suggestion.

The Petitioners must be prepared to suffer some inconvenience in the process of relocation. The petitioners obviously cannot reject such an offer only on the ground that the place where they are doing the business offer more attractive commercial site than one which is being offered to them by the AMC.

However, it is left for the corporation to work out with the Petitioners if the petitioners or any of them show interest in accepting the alternative offer. Writ petitions are disposed of accordingly.

Tags : Eviction Relocation Legality

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