Saturday, 18 February 2017

How to to assess whether permanent disability has any adverse effect on earning capacity of injured?

What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.” The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by the MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. 
Supreme Court of India
Sandeep Khanuja vs Atul Dande & Anr on 2 February, 2017

Bench: A.K. Sikri, R.K. Agrawal
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Whether permanent disability is same as loss of earning capacity in motor accident claim petition?

Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
Non Reportable
Supreme Court of India
Sandeep Khanuja vs Atul Dande & Anr on 2 February, 2017

Bench: A.K. Sikri, R.K. Agrawal
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Whether mere negligence or error of judgment on part of Advocate will amount to professional misconduct?

The present appeal preferred under Section 38 of the
Advocates Act, 1961 (for brevity, 'the Act') assails the
correctness of the order dated 15.10.2006 passed by the
Disciplinary Committee of the Bar Council of India in BCI
TR Case No.138 of 2005 whereby the said authority has
found the appellant guilty of gross negligence in discharge of
his professional service to the client and accordingly
imposed the punishment of reprimand with a further
stipulation that he shall pay a sum of Rs.5,000/- to the Bar
Council of India and an equivalent amount to the
complainant within two weeks' time from the date of receipt
of the order failing which he would stand suspended from
practising for a period of six months.
2. As the factual score would unroll, the
respondent-complainant engaged the appellant as advocate
in respect of a matrimonial dispute and during the
pendency of the matrimonial case, the wife of the
respondent breathed her last due to kidney failure in the
year 2002. The appellant advised the
complainant-respondent that as the wife had expired, there
was no justification to prosecute any further the case for
divorce and it was advisable to withdraw the said litigation.
In the meantime, the respondent engaged him to file a
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one
Ramachandran in favour of the respondent for a sum of
Rs.75,000/- (Rupees seventy five thousand only) had been
dishonoured. It is not in dispute that the appellant thought
it appropriate not to file a complaint under the N.I. Act but
he felt it apposite to file a complaint case before the
competent Magistrate under Section 420 of the Indian Penal
Code and accordingly he did so. As is demonstrable, the
learned Magistrate directed investigation to be conducted
under Section 156(3) of the Code of Criminal Procedure.
The eventual result of the said investigation has not been
brought on record.
It is urged by Mr. Parikh that when no finding is
returned that the cheque was kept back by the appellant,
there is no gross negligence. On the contrary, as he would
submit, it was handed over to the investigating agency
which was directed by learned Magistrate to carry out the
investigation under Section 156(3) CrPC. His only fault is
that he could not get the acknowledgment.
The Constitution Bench, in the matter of Mr. 'P' an
Advocate, (supra) has ruled that mere negligence or error of
judgment on the part of an advocate would not amount to
professional misconduct. It has been further held therein
that error of judgment cannot be completely eliminated in
all human affairs and mere negligence may not necessarily
show that the advocate who is guilty of it can be charged
with misconduct. The Constitution Bench, as is
demonstrable, has drawn a distinction between 'negligence'
and the 'gross negligence'. We think it appropriate to
reproduce the said passage. It is as follows:-
“But different considerations arise where the
negligence of the Advocate is gross. It may be that
before condemning an Advocate for misconduct,
courts are inclined to examine the question as to
whether such gross negligence involves moral
turpitude or delinquency. In dealing with this
aspect of the matter, however, it is of utmost
importance to remember that the expression
"moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or
opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A
willful and callous disregard for the interests of
the client may, in a proper case, be characterised
as conduct unbefitting an Advocate. In dealing
with matters of professional propriety, we cannot
ignore the fact that the profession of law is an
honourable profession and it occupies a place of
pride in the liberal professions of the country.
Any conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes
an Advocate unfit to be entrusted with the
responsible task of looking after the interests of
the litigant, must be regarded as conduct
involving moral turpitude. The
Advocates-on-record like the other members of
the Bar Advocates are Officers of the Court and
the purity of the administration of justice
depends as much on the integrity of the Judges
as on the honesty of the Bar. That is why in
dealing with the question as to whether an
Advocate has rendered himself unfit to belong to
the brotherhood at the Bar, the expression "moral
turpitude or delinquency" is not to be construed
in an unduly narrow and restricted sense.”10
[Emphasis Supplied]
16. Ms. K. Sarda Devi, learned counsel for the respondent,
per contra, would urge that the case of the respondent is
squarely covered by the dictum of the Constitution Bench
inasmuch as the Disciplinary Committee of the Bar Council
of India has held that there was gross-negligence on the
part of the appellant.
17. On a studied scrutiny of the evidence in this context,
the factual score, the act of the present appellant cannot be
treated to be in the realm of gross negligence. It would be
only one of negligence. The tenor of the impugned order, as
we notice, puts the blame on the appellant on the
foundation that he had not received the acknowledgment.
He has offered an explanation that he had given the cheque
to the police. There has been no delineation in that regard.
That apart, there is no clear cut analysis on deliberation on
gross negligence by the advocate. The Disciplinary
Committee found the appellant guilty of gross-negligence as
he had failed to get the acknowledgment from the
complainant-respondent. The examples given by the
Constitution Bench are of different nature. In the obtaining
factual matrix, therefore, we are unable to accept the
conclusion arrived at by the Disciplinary Authority of the
Bar Council of India that the negligence is gross. Hence we
are impelled not to accept the submission advanced by
learned counsel for the respondent.
Dated:February 16, 2017.
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Whether eviction suit can be dismissed on ground of non-non-examination of family member who intends to occupy said premises?

Mere non-examination of the family member who intends
to do the business cannot be taken as a ground for repelling the
reasonable requirement of the landlord. Under the Act, the
landlord needs to establish only a reasonable requirement. No
doubt, it is not a simple desire. It must be a genuine need.
Whether the requirement is based on a desire or need, will
depend on the facts of each case.
CIVIL APPEAL NOS. 1398-1399 OF 2011
Dated:FEBRUARY 17, 2017.
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