Judgments
Supreme Court
United India Insurance Co. Ltd. Vs. Satinder Kaur and Ors.
MANU/SC/0500/2020
30.06.2020
Motor Vehicles
Compensation towards loss of love and affection not to be awarded as a separate head
In facts of present case, the deceased was residing in Doha, Qatar since 1984. The deceased was visited India in November, 1998, he was riding a scooter, with his wife as the pillion rider, when he met with an accident with a Maruti car coming from the opposite direction. FIR was lodged under Section 304A, 279, 337, 427 of Indian Penal Code, 1860 (IPC) against the driver and owner of the offending car.
Claim Petition was filed before the MACT, Patiala (Punjab) under Section 166 of the Motor Vehicles Act, 1988 by the widow of the deceased, on behalf of herself and her 3 minor children for compensation on the death of her husband. The Claimants prayed for compensation of Rs. 50 lacs, alongwith Interest @18% p.a. to be paid jointly and severally by the Insurance Company, and the driver and owner of the Maruti car.
The MACT vide Award held that, a perusal of the first statement made by Claimant No. 1-widow of the deceased in the FIR, revealed that her husband was overtaking a tractor-trolley when the accident occurred, because the Maruti car was coming at a high speed from the opposite side. Consequently, the MACT held that it was a case of contributory negligence on the part of the deceased, as also on the part of the driver of the Maruti car.
Since it was a case of contributory negligence, the compensation was reduced by 50%, which worked out to Rs. 1.80 lacs. An amount of Rs. 10,000 was awarded towards funeral expenses. The compensation of Rs. 1,90,000 would carry Interest @9% p.a. from the date of filing the claim, till the date of payment. The MACT held all three Respondents i.e. the driver of the Maruti car, the owner of the car, and the Insurance Company liable to pay the compensation awarded, jointly and severally. Aggrieved by the aforesaid Judgment, the Claimants filed an Appeal before the High Court for further enhancement.
The High Court vide the impugned Judgment and Order upheld the findings of the MACT regarding contributory negligence. The Appellant-Insurance Company filed SLP (Civil) to challenge the impugned Judgment.
The criteria which are to be taken into consideration for assessing compensation in the case of death, are: (i) the age of the deceased at the time of his death; (ii) the number of dependants left behind by the deceased; and (iii) the income of the deceased at the time of his death.
In Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., this Court held that to arrive at the loss of dependency, the tribunal ought to take into consideration three factors:- i) Additions/deductions to be made for arriving at the income; ii) The deduction to be made towards the personal living expenses of the deceased; and iii) The multiplier to be applied with reference to the age of the deceased.
In National Insurance Company Limited v. Pranay Sethi and Ors., the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses.
In Magma General Insurance Co. Ltd. v. Nanu Ram and Ors., this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.
In the present case, the Courts below failed to award any amount towards future prospects. The deceased was just over 40 years of age at the time of his death. As per the judgment of the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Ors., future prospects @30% are to be awarded for computing the compensation payable to the Claimants. The deceased was 40 years of age at the time of his death. Accordingly, the multiplier of 15 would be the appropriate multiplier. Multiplying the multiplicand of Rs. 2,51,675 by the multiplier of 15, the loss of dependency payable to the Claimants would work out to Rs. 37,75,125.
Insofar as the conventional heads are concerned, the deceased left behind a widow and three children as his dependants, compensation is to be awarded on the basis of the judgments in National Insurance Company Limited v. Pranay Sethi and Ors. and Magma General Insurance Co. Ltd. v. Nanu Ram and Ors. The total compensation to be awarded is Rs.19,82,563. The Civil Appeals are disposed of.
Relevant
Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., MANU/SC/0606/2009
, National Insurance Company Limited v. Pranay Sethi and Ors. MANU/SC/1366/2017
, Magma General Insurance Co. Ltd. v. Nanu Ram and Ors. MANU/SC/1012/2018
Tags : Accident Compensation Determination
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High Court of Delhi
Life Insurance Corporation of India and Ors. Vs. Manmod Shankar and Ors.
MANU/DE/1310/2020
29.06.2020
Labour and Industrial
In case of reinstatement, payment of back wages is not a matter of right
Present are two petitions arising out of the impugned award passed by the Presiding Officer, Labour Court by which the Workman was reinstated into service. The Workman joined the Life Insurance Corporation of India as an Assistant on 25th September, 1989. Chargesheet was issued to him on the ground of unauthorised absence and on various other grounds. The said charge sheet was followed by a show cause notice and finally resulted into an enquiry and termination. The Workman filed two appeals before the Appellate Authority. The said appeals were rejected. Aggrieved by the order of the rejection of appeals, he approached the Labour Court, which directed his reinstatement vide the impugned order.
It is settled legal position that, the Workman cannot claim award of back wages in all cases. Several factors such as nature of misconduct are to be considered by the Court. In every case, upon reinstatement, payment of back wages is not a matter of right.
It is also the settled position in law that past conduct can be taken into consideration in order to adjudge whether the punishment meted out to the Workman is justified or not. The present is not a mere case of unauthorised absence for a few months due to a justified medical cause. It is much more. In fact, the Workman has defeated his own cause by not appearing before the concerned authorities and justifying his absence. It is in view of the long tenure of the Workman that the Labour Court has reinstated him but without monetary benefits for the intervening period.
In the backdrop of the legal position, present Court has perused the initial charge sheet, the show cause notice as also the order of the Disciplinary Authority, the enquiry report and the order of the Appellate Authority. The enquiry report and the orders of the Disciplinary Authority and the Appellate Authority are detailed in nature. They clearly reflect upon the complete lack of discipline on behalf of the Workman, who has not merely absented himself from duty but has continuously exhibited lack of any adherence to the discipline required for working in an organization like LIC. While mere absence due to medical grounds may not justify termination of an employee, there has to be some conduct on behalf of the Workman to show that he bonafidely placed his case before the management.
It is apparent upon a perusal of the record that the employer was almost forced to take such actions against the Workman, owing to the continuous non-cooperative attitude and indiscipline and violation of various service conditions. The charge sheet is not merely based upon past conduct for which the Workman was already punished. The charge sheet has set out the various grounds which were taken into consideration for constituting an enquiry against the Workman.
All the allegations raised against the Workman were duly communicated to him and there is no violation of the principles of natural justice in present case. The Workman has selectively chosen to participate in the proceedings, but has on most occasions refused to participate, while fully being aware of the proceedings. A workman cannot claim back wages as a matter of right as held in Rajasthan State Road Transport Corporation vs. Phool Chand (Dead) through L.Rs. While the long tenure of the workman has resulted in his reinstatement, owing to his past conduct, the labour court has rightly held that he would not be entitled to back wages. Under such circumstances, the Labour Court's order which directs reinstatement on such terms and conditions as it thinks fit, as has been done in the present case, is fully justified and does not warrant any interference. Petitions dismissed.
Relevant
Rajasthan State Road Transport Corporation, Jaipur vs. Phool Chand (Dead) through L.Rs. MANU/SC/1020/2018
Tags : Past conduct Reinstatement Legality
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High Court of Delhi
Rajkumar Verma Vs.Chief General Manager, State Bank of India and Ors.
MANU/DE/1321/2020
29.06.2020
Service
A Government servant holding a transferrable post cannot claim a vested right to remain posted at a particular place
Present Writ Petition has been filed by the Petitioner, challenging the Transfer Order whereby the Petitioner has been transferred from Dehradun to Bhopal Circle. A direction is also sought to continue the services of the Petitioner within Delhi Circle, as per the State Bank of India Inter Circle Transfer Policy dated 1st January, 2020. Learned Counsel for Petitioner points out that, the impugned transfer order is in the teeth of the aforesaid Transfer Policy, as there cannot be an inter-circle transfer.
Law on the scope of interference by Courts in matters of transfer/posting is no longer res Integra. Supreme Court in Shilpi Bose (Mrs.) and Ors. vs. State of Bihar and Ors., has held that there should be minimal interference by Courts in matters relating to posting of employees. The limited grounds on which the Court can interfere are violation of mandatory Statutory Rules or terms of the Transfer Policy or on the ground of malafide.
Ground of malafide is neither pleaded nor argued by learned Counsel for the Petitioner. Insofar as the ground of violation of the terms of the Transfer Policy is concerned, it is rightly contended by learned Senior Counsel for Respondent that, the Policy itself envisages an exception to the right of the employee to be transferred within the Parent Circle. The exception being exigency of service would undoubtedly override all other considerations.
Appointment and post of the Petitioner carries an All India Service liability and he can be transferred by the Respondent in case there is an Administrative requirement. It is really the domain and the prerogative of the Respondent to judge the exigency of service and decide which employee is required to be posted at what place. It is not for the Court to interfere in this decision. The Petitioner has himself given an undertaking to be transferred in case of requirement of the Respondent, at the time of his promotion, as Deputy Manager (Security) in the scale of MMG-II and cannot be permitted to resile from the same.
A Government servant holding a transferrable post cannot claim a vested right to remain posted at a particular place. As held by the Supreme Court in Shilpi Bose, if the Courts continue to interfere with day-to-day transfer orders, there will be complete chaos in the administration which would not be conducive to public interest. Transfer is not only an incident but a condition of service and the Courts should be reluctant to interfere in the interest of efficiency in public administration.
Present Court does not find merit in the plea of the Petitioner that in a span of 7 years, he has been posted 5 times. Perusal of the Table given by the Petitioner is an indicator that the 4 postings were all within the Delhi Circle and the Petitioner was only transferred from one office to another. This Court finds no reason to interfere with the impugned Transfer Order.
The Petitioner prayed that a period of 15 days be given to the Petitioner, as joining time. This request of the Petitioner, in the prevailing circumstances, is reasonable. Petitioner is permitted to join his new place of posting at Bhopal, within a period of 15 days. Application disposed of.
Tags : Transfer order Right Interference
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Income Tax Appellate Tribunal
Ashish Subodhchandra Shah (HUF) Vs. Pr. Commissioner of Income Tax-5, Ahmedabad
MANU/IB/0173/2020
29.06.2020
Direct Taxation
Domestic transactions with an Associate Enterprise (AE) would not constitute “Specific Domestic Transactions” for the purpose of Section 92BA of IT Act
The captioned appeal has been filed at the instance of the Assessee against the order of the Principal Commissioner of Income Tax, (‘Pr.CIT’), arising in the assessment order passed by the Assessing Officer (AO) under Section143(3) of the Income Tax Act, 1961 (IT Act). In the captioned appeal, the assessee has challenged the action of the Pr.CIT assumed under Section 263 of the IT Act whereby assessment order passed by AO under Section 143(3) of the IT Act was sought to be set aside for consequential enquiries on transactions undertaken by the assessee with sister concern having regard to provisions of Section 92BA of IT Act.
It is the case of the assessee that, the show cause notice issued by the Revisionary Commissioner seeking to displace the assessment order passed by the AO under Section 143(3) of IT Act in exercise of its statutory functions is not justified.
Supervisory jurisdiction vested under Section 263 of IT Act enables the concerned PCIT/CIT to review the records of any proceedings and order passed therein by the AO. The revisionary powers conferred on the PCIT/CIT under Section 263 of IT Act are of very wide amplitude with a view to address the revenue risks which are objectively justifiable.
Further, the consequential proceedings under Section 92BA of IT Act for referent to TPO and other enquiries contemplated in respect of SDT would trigger only when a stipulated transaction falls within the meaning of definition of SDT as provided under Section 92BA of IT Act.
In the facts and circumstances of the case, it is an admitted fact that the so called Specified Domestic Transaction (‘SDT’) under lens of the Pr.CIT primarily represents ‘sale’ made by the assessee to its sister concern. Naturally a ‘sale’ made by the assessee gets outrightly excluded from the ambit of clause (i) of Section 92BA of the IT Act which is meant to deal with ‘expenditure’ incurred by the assessee to the benefit of sister concern/AE. Various clauses of Section 92BA of the IT Act were not applicable in the factual matrix. As a corollary, merely because a prescribed Form No. 3CEB was filed in accordance with Rule 10E read with Section 92BA of the IT Act would not make an assessee susceptible to onerous investigation proceedings on such transactions, where the assessee prima facie demonstrates that Section 92BA of the IT Act is wholly inapplicable in any manner at the first instance. The Pr.CIT was seized with the relevant facts and could have easily satisfied himself of such prima facie assertions.
A lack of enquiry in a particular manner or as per certain procedures prescribed would possibly vitiate the assessment order only when it is found that the relevant provisions were applicable to the assessee and not otherwise. The allegations made by the Pr.CIT in the instant case have been successfully rebutted on behalf of the assessee. In view of the domestic transaction with AE not falling in the sweep of Section 92BA of the IT Act at the threshold, any alleged inaction attributable to the AO in this regard would not vitiate assessment order as erroneous nor did it cause any prejudice to the interest of the Revenue. The ingredients of Section 263 of the IT Act are thus clearly not fulfilled. Hence, revisional order passed under Section 263 of the Act seeking to set aside the assessment order passed under Section 263 of the Act requires to be quashed. Appeal of the assessee is allowed.
Tags : Assessment Revisional order Legality
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National Consumer Disputes Redressal Commission
Satbir Singh Vs. Apna Hospital and Ors.
MANU/CF/0339/2020
29.06.2020
Consumer
Doctor is not liable for negligence, if he performs his duty with reasonableness and with due care
The Complainant Satbir Singh ('the patient') while attending marriage of his friend due to fire cracker explosion suffered burn/crush injury to his right foot. He was taken to Apna Hospital (Opposite Party (OP)-1). OP-2 Doctor examined him and performed surgery for debridement of the right foot with Kirschner wires (K-wires) insertion in 1st and 2nd toe. However, patient did not get relief. The OP-2 and 3 assured that everything had gone smoothly and nothing to worry. It was alleged that, the hospital (OP-1) discharged the patient without proper follow-up advice or precautions. The OP-2 issued a fitness certificate as "fit to travel anywhere" on the letter head of the hospital. During travel, the swelling was started in his right foot and he had pain beyond control. Soon after arrival in Australia, the Complainant got admitted in a Fremantle Hospital. It was alleged that, though the burn injuries being highly prone for infections, the OP-2 and 3 did not prescribe any precautions at the time of discharge. Thus, it was gross error on the part of OP-2 and 3 who have not failed to treat the patient's injury with skill and care.
Being aggrieved by negligent treatment and post-operative care given by OP-1, 2 and 3, the complainant filed a complaint before this commission under Section 21 of the Consumer Protection Act, 1986 ('the Act, 1986') and prayed compensation of Rs. 1,50,11,941 for his alleged permanent disability, mental agony and harassment which he suffered.
It was the blatant misconception of the complainant that Orthopaedic surgeon is not qualified or competent to deal with these types of injuries. It is pertinent to note that, OP-2, being an Orthopaedic Surgeon having experience of two decades was competent to treat such accidental fracture injuries in the foot. The role of plastic surgeon comes at later stage after the cure of initial wound infection.
In the instant case, OP-2 had done his duty with care and caution. Nothing was wrong to do k-wire insertion and then after healing of wound patient was to be referred to Plastic Surgeon. There is no breach of duty of care from the OP-2 which caused resultant injury to the Complainant.
The mode of treatment and skill differ from doctor to doctor. The doctor is not liable for negligence, if he performs his duty with reasonableness and with due care. Based on the entire treatment records and the evidence of the parties, the OP-2 treated foot injury the patient as an accepted line of treatment. The k-wiring procedure was correctly performed and patient was treated with proper antibiotics and other medicines. There is no fault with the operation or treatment given by OP-2. The sufferings of patient were due to severe wound infection caused due his own fault. He did not follow post discharge instructions of OP-2 and moreover he travelled a long distance (more than 10 hours). The complaint is untenable and ill-conceived. Complaint is dismissed with cost.
Tags : Injury Compensation Entitlement
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High Court of Himachal Pradesh
Jagat Ram Vs. State of Himachal Pradesh and Ors.
MANU/HP/0531/2020
26.06.2020
Criminal
Grant of remission or parole is not a right vested with the prisoner; it is a privilege available to the prisoner on fulfilling certain conditions
The Petitioner has been convicted for the offences punishable under Sections 302, 392, 328, 473, 34 of Indian Penal Code, 1860 (IPC) and has now sought parole. The only ground taken by the Respondents for rejecting the request of the Petitioner for grant of parole is that, even though the Local Panchayat has no objection for grant of parole, but the Local Police have not recommended the sanction of parole on the ground that, the Petitioner has been convicted for a serious and heinous offence.
The moot question is whether the request for grant of parole can be rejected only on the ground that the petitioner has been convicted for a serious and heinous offence.
It is more than settled that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The Court cannot exercise these powers, though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.
The only ground taken by the Respondents to reject the request of parole is that, the Petitioner has been convicted for a serious and heinous offence. This cannot itself be a ground for denying the Petitioner parole in accordance with the provisions of H.P. Good Conduct Prisoners (Temporary Release) Act, 1968.
The Petitioner has earlier been released four times on parole for 42 days and on each and every occasion he complied with the terms and conditions of the order granting parole, more particularly, this cannot be a ground when the Petitioner was released on parole. Even at that time, the status of the Petitioner was that of a convict for the offences, therefore, in absence of any changed circumstances, it is too late for the day for the Respondents to reject the request of the Petitioner merely on the ground that he has been convicted for a serious and heinous offence.
In the instant case also, there is no material to support the conclusion drawn by the District Magistrate to reject the request for grant of parole. Consequently, this Court is left with no other option, but to allow the instant petition. Accordingly, the present writ petition is allowed and the Respondents are directed to release the Petitioner on parole for a period of 42 days after taking requisite personal and surety bonds.
Tags : Parole Release Entitlement
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