Whether plea of O 2 R 2 of CPC can be proved without filing pleadings of previous case?

In order that a plea of a bar under 0. 2. r. 2(3), Civil
Procedure Code should succeed the defendant who raises the plea
must make out (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based, (2)
7 AIR 1964 Supreme Court 1980

that in respect of that cause of action the plaintiff was entitled to
more than one relief, (3) that being thus entitled to more than one
relief the plaintiff, without leave obtained from the Court, omitted
to sue for the relief for which the second suit had been filed. From
this analysis it would be seen that the defendant would have to
establish primarily and to start with, the precise cause of action
upon which the previous suit was filed, for unless there is identity
between the cause of action on which the earlier suit was filed
and that on which the claim in the later suit is based there would
be no scope for the application of the bar. No doubt, a relief
which is sought in a plaint could ordinarily be traceable to a
particular cause of action but this might, by no means, be the
universal rule. As the plea is a technical bar it has to be
established satisfactorily and cannot be presumed merely on basis
of inferential reasoning. It is for this reason that we consider that
a plea of a bar under 0. 2. r. 2, Civil Procedure Code can be
established only if the defendant files in evidence the pleadings in
the previous suit and thereby proves to the Court the identity of
the cause of action in the two suits. It is common ground that the
pleadings in C.S. 28 of 1950 were not filed by the appellant in the
present suit as evidence in support of his plea under 0. 2. r. 2,
Civil Procedure Code. The learned trial Judge, however, without
these pleadings being on the record inferred what the cause of
action should have been from the reference to the previous suit
contained in the plaint as a matter of deduction. At the stage of
the appeal the learned District Judge noticed this lacuna in the
appelllant's case and pointed out, in our opinion rightly, that
without the plaint in the previous suit being on the record, a plea
of a bar under 0. 2. r. 2, Civil Procedure Code was not main-
tainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. 2063 OF 2001


Jaswinder Paul Batra of U.S.A.,


Versus

 Mrs.Neeru Batra



CORAM : K.R.SHRIRAM, J.
DATE : 23RD FEBRUARY, 2015
Citation;AIR 2015(NOC)656 Bom

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When court should not permit production of document at late stage of proceeding?

In the case on hand, the suit was filed on 8.9.2010. On
receipt of summons, the appellant entered appearance through
counsel, on 13.10.2010. Thereafter, on 22.10.2011, he filed a
written statement raising a plea of discharge. However, no document
in support of such a plea of discharge was either specifically
mentioned in the written statement or produced in court at the time

of presentation of the written statement. Later, on 11.11.2013, at
the time of cross-examination of the respondent as PW1, the
appellant produced in court a receipt dated 16.12.2009 (marked as
Exhibit B1 subject to the objection of the respondent), alleged to
have been issued by the respondent. Instead of producing the said
document in court along with an application under sub-rule (3) of
rule 1A of Order VIII of the Code seeking leave of the court to
produce such a document, the appellant attempted to mark the said
document during the cross-examination of the respondent as PW1,
contending that, it is a document intended to be handed over to PW1
merely to refresh his memory, the production of which would fall
under clause (b) of Sub-rule (4) of Rule 1A. We are unable to accept
the said contention raised by the learned counsel for the respondent.
Exhibit B1 receipt is a document which should be the basis for the
plea of discharge raised by the appellant in his written statement. It
is a document, which the appellant ought to have produced in court
at the time of presentation of the written statement, in view of the
provisions contained in sub-rule (1) of rule 1A. Such a document
cannot be termed as one intended to be handed over to PW1 merely
to refresh his memory, falling under clause (b) of sub-rule (4) of rule

1A. Exhibit B1 is the basic document relied on by the appellant to
prove his plea of discharge raised in the written statement. If the
appellant could not produce the said document at the time of
presentation of the written statement, for any convincing reasons, it
is for him to produce the same in court along with an application
under sub-rule (3) of rule 1A, seeking the leave of the court. Having
failed to do so, it is not open for the appellant to contend that the
court below erred in not receiving Exhibit B1 receipt into evidence.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 27TH DAY OF FEBRUARY 2015
RFA.No. 415 of 2014 (B)

K.VIJAYAKUMARN NAIR @ VIJAYAN.
Vs
AJIKUMAR,
Citation;AIR 2015 (NOC)642 Kerala

Anil K.Narendran, J.

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Whether it is necessary to acquire land for laying of high tension electricity lines or electricity poles for transmission of electricity?

Similarly the law was also considered by the Division Bench of Gujrat High Court and after discussing the various provisions of the Electricity Act and the Telegraph Act, the Division Bench of Gujrat High Curt has categorically held that the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognize the absolute powers of the respondent-company to proceed in laying of high tension electricity lines or electricity poles for transmission of electricity on or over the land belonging to the persons subject to the right of the persons to claim compensation, if any damage is sustained by them by reasons of laying such high tension lines. It is further held that neither the acquisition of land is necessary nor there is any need for consent of the land holders and, therefore, no mandamus can be issued restraining the respondent-company for proceeding with the erection of poles and transmission lines through the land of the petitioners.

Madhya Pradesh High Court

Lalchand Agrawal vs Union Of India on 23 March, 2015

Citation;AIR 2015 (NOC)692 MP

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Whether competition commission can allow settlements and compromise between parties?

Therefore, it is clear that a settlement is possible both in the European
Union and in the United States to the extent indicated above. To some extent,
the obligations imposed by the World Trade Organisations upon its member
countries, are the same. In such circumstances, we do not see any reason as to
why the Scheme of the Competition Act, 2002 should be taken to prohibit any
settlement, especially when the scope of Section 27 of the Act is very wide,
conferring jurisdiction upon the Commission to pass residuary orders. Hence, our
answer to the first question is that it is possible within the framework and
scheme of the Competition Act, 2002, to allow settlements and compromises to
be reached between parties, provided the Commission is of the considered view
that such settlements and compromises (1) would not lead to the continuance of
Anti-Competitive Practices (2) would not allow the abuse of dominant position to
continue and (3) would not be prejudicial to the interest of consumers or to the
freedom of trade.w

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Delivered on: 27-03-2015
Coram:
The Honourable Mr.Justice V.RAMASUBRAMANIAN
and
The Honourable Mr.Justice P.R.SHIVAKUMAR
Writ Appeal Nos.1806 and 1807 of 2013
The Tamil Nadu Film Exhibitors Association

Vs
 Competition Commission of India



Citation;AIR 2015 MADRAS 106

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Whether proxy land acquisition is permissible?

The acquisition of property of respondent No. 5 by proxy
acquisition where not only the provisions of the Land Acquisition Act
would be invoked but even the cost of acquisition and publication will
be paid by some other third agency would in fact mean depriving the
respondent No. 5 of his property save and except by authority of law,
which would be contrary to the letter and spirit of Article 300 A of
Constitution of India.
CWP No. 11334 of 2011.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Date of decision: 17.4.2015.
Prakash chand
Vs.
State of H.P. & ors.
Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation; AIR 2015 HP42

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Whether claim petition under MACT will abate on death of owner of vehicle due to which accident happened?

It is apt to reproduce Section 155 of the MV Act herein:
"155. Effect of death on certain causes of
action.
-
Notwithstanding
anything
contained in section 306 of the Indian

Succession Act, 1925 (39 of 1925), the death
of a person in whose favour a certificate of
insurance had been insured, if it occurs after
the happening of an event which has given
rise to a claim under the provisions of this
Chapter, shall not be a bar to the survival of
any cause of action arising out of the said
event against his estate or against the
insurer."

Claim petition-Abatement-Death of driver-cum-owner of vehicle during pendency of claim petition-shall not be bar to survival of cause of action arising out of accident against his assets and his insurer-O 22 of cpc is not applicable to proceeding before motor accidents claim tribunal-Claim petition would not abate on ground of death on ground of death of owner.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.
17 of 2008

United India Insurance Company Limited Vs Smt. Brijbala & others

Decided on: 20.03.2015
Coram

The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Citation;AIR 2015 Himachal Pradesh34

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Whether defendant can prove customary marriage relying on evidence adduced by plaintiff?

Now when the defendant while appearing as a witness in her deposition, which deposition has remained unshattered during the ordeal of her cross-examination, has deposed that in tandem with the ingredients of the customary marriage as deposed by PW-1 in his deposition comprised in his cross-examination her marriage with deceased Kanwar Singh was solemnized in consonance with or in conformity with the observances and rituals of the custom prevailing in the area where both were residing. Further more, when the witnesses of the defendant, namely, DW-5 Prem Dutt and DW-7 Mohan Singh, have also deposed in corroboration to the deposition of DW-1, Tara Devi of her marriage having been solemnized with deceased Kanwar Singh in conformity with the custom prevalent in the area, where both were residing. Consequently, it has to be aptly concluded that the marriage inter se the deceased Kanwar Singh and defendant/respondent was solemnized in consonance with the custom prevailing in the locality or the area where both the defendant/respondent and deceased Kanwar Singh were residing. Now the effect of the aforesaid discussion, more particularly of PW-1 in his cross-examination conveying acquiescence and admission besides, communicating the elements, traits and characteristics which inhered in the custom in consonance whereof the marriage of deceased Kanwar Singh was performed with the pre-deceased wife of the latter in consonance with and in conformity whereof also the marriage of deceased Kanwar Singh was performed with the defendant/respondent herein relieves the rigour of enjoining the defendant to plead the elements and traits of the custom in consonance or in conformity whereof her marriage with deceased Kanwar Singh was solemnized. It also, hence, when loudly communicated in the deposition of PW-1, hence, estops the counsel for the plaintiff to contend that such, traits and elements or observances or rituals are not inhering in the custom inconsonance whereof the marriage of the defendant/respondent herein was solemnized with the deceased. Obviously, then the aforesaid traits and characteristics are to be concluded to be constituting the tenets and canons underlying the custom, dehors the absence of adduction by the defendant of the wazib-ul-arz spelling out the existence of customary marriage in the area where both were residing. Preponderantly, when the said elements, characteristics and traits of the custom exist in the cross-examination of PW-1, then the necessity of pleading of its traits and characteristics also ought not to baulk, estop or stand in the way of reading evidence as adduced by the plaintiff as also evidence in tandem thereto adduced by the defendant, in proof of the ingredients of the custom, even if the said ingredients have remained un-pleaded in the written statement.
13. Reinforcingly, the aforesaid discussion underlines the factum of admission qua the characteristics and traits of the custom deposed by the plaintiff's witness constituting admission as well as estopping the counsel for the plaintiff from forbidding or interdicting this Court from reading the evidence led by both the plaintiff and the defendant in proof of the custom or observance of rituals for sanctifying the marriage performed in conformity thereof inter se the defendant/respondent with deceased Kanwar Singh besides, it operates as an exception to the rule that evidence when not pleaded is discardable or excludable.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.263 of 2003.
Decided on: 18th March, 2015.

Ms kavita Vs Smt. Tara Devi


Coram
 Mr.Justice Sureshwar Thakur, Judge.

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What facts are to be established by claimant for claiming compensation in case of death in MACT case?

 Basically only three facts need to be established by the claimants for assessing compensation in the case of death:

(a) age of the deceased;

(b) income of the deceased; and

(c) the number of dependants.

Supreme Court of India

Arun Kumar Agrawal & Anr vs National Insurance Co. Ltd. & Ors on 22 July, 2010

Bench: G.S. Singhvi, Ashok Kumar Ganguly

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Whether documents can be by physically accepted in case of E-Auction?

   In the present case, in my considered opinion, the very basis of
calling for the tender on e-procurement basis would be defeated if
respondent No.2 accepts the documents submitted physically from 
respondent No.3. It appears from the counter affidavit of respondent
No.2 that not only respondent No.3 but some other bidders also
submitted documents physically. The essential terms and conditions of
the tender, having been violated, I am not convinced to uphold the
contentions of learned senior counsel for respondent No.3 as well as
learned Government pleader. It may be that the offer of respondent
No.3 is cheaper by considerable amount but that by itself is not the
criteria to overlook the essential conditions of tender having been
violated. The decision of Division Bench of this Court in PBR SELECT
INFRA PROJECTSs case (1 supra) relied upon by the learned senior  
counsel is clearly not applicable to the facts of this court as that case
dealt with the requirement of experience among the partnership firm
and its partners. For the reasons aforesaid, therefore, the action of
respondent No.2 in accepting the tender of respondent No.3 in
violation of the terms and conditions of tender cannot be approved.
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR          

WRIT PETITION No.1068 of 2015   

Dated;13-02-2015 

M/s.KRK Infraprojects India Pvt. Ltd. 5-1-529, 
V
State of Telangana, 
                                 Citation;AIR 2015(NOC)703HYD

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Whether parents of deceased child are entitled to get compensation for loss of love and affection in MACT case?

Further, we award Rs.1,00,000/- to each of the appellant-children, i.e. Rs.1,00,000/- and Rs.3,00,000/- respectively, as per the principles laid down by this Court in the case of Jiju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[5] towards loss of love and affection of the deceased father. Further, an amount of Rs.50,000/- each is to be awarded to the parents of the deceased for the loss of love and affection of their deceased son as per the principles laid down by this Court in the case of M. Mansoor & Anr. v. United India Insurance Co. Ltd[6]. We further award Rs.25,000/- each towards funeral expenses of both the deceased as held by this Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors.[7]

Supreme Court of India

Smt.Neeta W/O Kallappa Kadolkar & ... vs The Div.Manager, Msrtc, Kolhapur on 13 January, 2015

Bench: V. Gopala Gowda, C. Nagappan

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What is doctrine of last opportunity in case of motor accident?

 In the case of Laxman Iyer, Hon'ble Apex Court has referred to the doctrine of last opportunity. Underlying principle of the doctrine is that when both parties are careless, party which has the last opportunity of avoiding the result of other's carelessness alone is liable. This doctrine on facts of the instant case cannot be said to be applicable here and what could be applicable is causation test as held in Laxman Iyer's case. According to this test, cause or causes of damage are to be seen and if it is found that one party's negligence together with other party's negligence was the proximate cause of the accident, the accident would be the result of contributory negligence. In the instant case, deceased Sk.Umar was indeed careless in his act of sleeping at a place neither suitable nor used ordinarily for sleeping. Added to it was the fact that the area was not well lit and so the driver of the offending vehicle could not have had any opportunity of avoiding the accident altogether. Of course, further damage could have been avoided by him, but, for that matter, liability in equal measure has also been fixed on the driver by the Tribunal, and rightly so.

Equivalent Citation: 2015(3)ALLMR565

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 1023 of 2013

Decided On: 20.11.2014

Shahana
Vs.
Sureshsingh Thakur Gajrajsingh Thakur

Coram:
S.B. Shukre, J.

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Whether curing of defect in plaint would be effective from date of lodging of suit?

 In this case also the defect is in regard to signing and verification of the plaint. The same can be cured. The curing of the defect in the plaint would be effective as from the date of the lodging of the suit, i.e., 27.4.2009.

Bombay High Court

Meera Housing Pvt. Ltd vs Khatau Makanji And Company Pvt. ... on 10 October, 2014

Bench: K.R. Sriram

Citation;2015(3) ALLMR739

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Whether plaint can be rejected on the ground that plaint is signed by director who is declared as insolvent?

At the same time Order VI rule 14 of the CPC permits the pleading to be signed by any person duly authorised by the Plaintiffs.

In this case the Company had infact authorised the said Bagwe. The resolution annexed to the plaint is not authorising the Director of the Plaintiffs but it is authorising a specific person Mr. Bagwe, who is described as a Director of the Plaintiffs.

7 Therefore, in my view, the authority was quite valid even though the said Bagwe could not have been a Director. Even otherwise it would be only an irregularity that could be rectified and not in illegality.

Bombay High Court

Meera Housing Pvt. Ltd vs Khatau Makanji And Company Pvt. ... on 10 October, 2014

Bench: K.R. Sriram

Citation;2015(3) ALLMR739

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Appellate forum is determined on basis of valuation in plaint and not on basis of contents of decree

That apart the general proposition of law which has been laid
down by the judgments cited (supra) is that the Appellate forum is determined
on the basis of the valuation as originally set out in the plaint and not on the
basis of the contents of the decree.
 In my view, the application of the said proposition of law results in
uniformity in so far as the Appellate forum is concerned, as otherwise it would
happen that the Plaintiffs may choose one Appellate forum and the Defendants
another. Hence though the valuation for the purposes of court fees would
change in a given case, for the purposes of jurisdiction it would remain the
same. Such a scenario cannot be said to be alien to the legal frame work which
is applicable to the valuation of the suit. The learned Senior Counsel Shri
Kumbhakoni is therefore right in submitting that the valuation a suit for the
purposes of payment of court fees and for the purposes of jurisdiction should
not be confused with each other.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.654 OF 2011
 Sagar Dattatraya Sakhare ]

Versus
 Shri Sanjay Waman Sathe ]


CORAM : R. M. SAVANT, J.

Pronounced on : 26th June 2014
Citation; 2015(3) ALLMR667

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What will be effect if there is no specific denial of a fact by deft in written statement?

Suresh/Surekha
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides

that every allegation of fact in the plaint, if not denied
specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be
admitted except as against the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEALS NO. 3 of 2005 and 9 of 2009
SECOND APPEAL NO. 3 of 2005
 Shri Suresh Kakodkar,

Versus
 Shri Vinayak Gopinath Naik
Karmali




CORAM :- U. V. BAKRE, J.

Pronounced on : 4 th July, 2014 .
Citation; 2015(3) ALLMR614

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Whether court can supply a word while interpreting a deed which is not used by author of document?

 In the case of “Mula Sahakari Sakhar Karkhana
Ltd.”(supra), the Hon'ble Apex Court has held that a document,
as is well known, must primarily be construed on the basis of the
terms and conditions contained therein and that it is also trite
that while construing a document the Court shall not supply any
words which the author thereof did not use. It has been further
held that surrounding circumstances are relevant for construction
of a document only if any ambiguity exists therein and not other
wise. Therefore, it is evident from the above provisions of law that
nothing can be added to the Deed of Partition by way of oral
evidence. The said document at Exhibit PW1/A-colly speaks for
itself. No doubt, there were no survey numbers as mentioned in

paragraph 2A, at the time of said Deed of Partition. But the said
Deed of Partition, in itself, does not show that the property was
divided into various plots, of various dimensions, lying at
particular places, and that some such plots were allotted to the
plaintiffs and some to the defendants. In the circumstances
above, the first substantial question of law gets answered in the
negative, since truely, the said Escritura de Divisao (Deed of
Partition) at Exhibit PW1/A-colly is merely a declaratory
document.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 57 of 2004
 Mr. Lateran Max Francisco Vaz,

Versus
 Mrs. Volvetta Gomes,




CORAM :- U. V. BAKRE, J.

Pronounced on : 13 th June, 2014 .
Citation; 2015(3) ALLMR594 Goa high court

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How to ascertain income of deceased victim in MACT case for grant of compensation?

 There is no dispute about the principle laid down in above-stated cases that even in proceedings initiated under Section 166 of Motor Vehicles Act, the criterion of structured formula as mentioned in 2nd Schedule can be considered. But, this principle of law also tells us that notional income given in clause 6 of 2nd Schedule is only for guidance and if there is any other evidence available on record, the other evidence must also be taken into account. In the instant matter, there is evidence led by the appellants that deceased Sk. Umar was earning income of Rs.1,500/-per month by selling wigs. Although, this has been denied by respondent no. 2, mere denial is not enough. Some circumstances should have been brought on record to controvert the same. But, that is not the case here. At the same time, Tribunal has also not accepted the bald statement of the appellants that income of the deceased was Rs.1,500/-per month. The Tribunal has only considered the effect of the statement by inferring that the deceased was doing some business and indeed earning some income. Therefore, by way of some approximation, the Tribunal considered the income of the deceased on notional basis and found it to be of Rs.3,000/-per month. I do not see any illegality in the finding so recorded by the Tribunal. Thus, I find that the income of the deceased can be taken to be at Rs.3,000/-per month for calculating the loss of dependency.

Equivalent Citation: 2015(3)ALLMR565

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 1023 of 2013

Decided On: 20.11.2014

 Shahana
Vs.
 Sureshsingh Thakur Gajrajsingh Thakur

Hon'ble Judges/Coram:
S.B. Shukre, J.

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When court should grant enhanced compensation for additional heads in Mact case?

 In the circumstances, I find that the compensation determined as due and payable to the appellants by the Tribunal is not just and proper and it needs to be enhanced further by awarding more compensation for the additional heads, such as loss of consortium for appellant no. 1, loss of love and affection for appellant no. 2, loss of estate for appellant no. 3 and loss of expectation of life in relation to the death of Sk. Umar at the rate of Rs. one lac for each of these heads, as awarded by the Hon'ble Apex Court in the afore-stated cases. Funeral expenses of Rs.20,000/-in addition to Rs.5,000/-already granted would also have to be allowed. Equivalent Citation: 2015(3)ALLMR565

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 1023 of 2013

Decided On: 20.11.2014

Appellants: Shahana
Vs.
Respondent: Sureshsingh Thakur Gajrajsingh Thakur

Hon'ble Judges/Coram:
S.B. Shukre, J.

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Good study material on motor accident claims cases

http://judicialacademy.nic.in/macr%20book.pdf

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How to determine compensation in case of death of housewife in accident?

Principle for determination of loss of
dependency on account of gratuitous services rendered by a
housewife. Para 34 of the judgment in Master Manmeet Singh
(supra) is extracted hereunder:-
“34. To sum up, the loss of dependency on account of
gratuitous services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a
   Graduate.
(ii) Minimum salary of a Matriculate where she is a
    Matriculate.
(iii) Minimum salary of a non-Matriculate in other
     cases.

(iv) There will be an addition of 25% in the assumed
    income in (i), (ii) and (iii) where the age of the
   homemaker is upto 40 years; the increase will be
  restricted to 15% where her age is above 40 years
 but less than 50 years; there will not be any
addition in the assumed salary where the age is
more than 50 years.
(v) When the deceased home maker is above 55 years
   but less than 60 years; there will be deduction of
  25%; and when the deceased home maker is above
 60 years there will be deduction of 50% in the
assumed income as the services rendered decrease
substantially. Normally, the value of gratuitous
services rendered will be NIL (unless there is
evidence to the contrary) when the home maker is
above 65 years.
(vi) If a housewife dies issueless, the contribution
    towards the gratuitous services is much less, as
   there are greater chances of the husband’s re-
    marriage. In such cases, the loss of dependency
   shall be 50% of the income as per the qualification
  stated in (i), (ii) and (iii) above and addition and
 deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the
personal and living expenses.
(viii) As an attempt has been made to compensate the
loss of dependency, only a notional sum which may
be upto ` 25,000/- (on present scale of the money
value) towards loss of love and affection and `
10,000/- towards loss of consortium, if the
husband is alive, may be awarded.
(ix)
Since a homemaker is not working and thus not
earning, no amount should be awarded towards
loss of estate.”



IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:27th February, 2012

MAC. APP. No.208/2012
ICICI LOMBARD GENERAL INSURANCE CO LTD.

versus
SHRIKANT & ORS

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Whether victim between age group of 50 to 60 years can be granted enhancement of 15%towards loss of future prospect in MACT Case?

“8. Since, the Court in Santosh Devi case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self- employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.

9. In Sarla Verma case, it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.”

Supreme Court of India

Sanjay Verma vs Haryana Roadways on 29 January, 2014

Bench: P Sathasivam, Ranjan Gogoi, Shiva Kirti Singh

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How to calculate compensation in MACT cases?

Please check the link below for the the study material : 
http://hpsja.nic.in/jaarticle.pdf

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Whether Marriage certificate can be cancelled as per wish of parties to marriage?

There is no case for the petitioner that he had any intention to commit any fraud.
Registration of a marriage to secure visa would be made only on the
volition of the parties to the alleged marriage. They cannot get those
entries cancelled once they changed their mind. The authority under
the Rules exercises a very serious function of registering marriages.
A marriage certificate is a permanent record. The authorities under
the Rules are expected to keep the records as permanent records.
The entries made in the memorandum and which were later carried
out in the Marriage Register cannot be altered except on the ground
of errors or on the ground that the entries were fraudulently or
improperly made.
The parties who submitted the memorandum in
Form No.I with a declaration that the details shown therein are true
to the best of their knowledge and belief cannot turn round and say
that the said declaration was made for a particular purpose and,
therefore, the entries are liable to be corrected and the registration is
liable to be cancelled. The entries in the Marriage Register and the
marriage certificate are not liable to be corrected at the whims and
fancies of the parties to the marriage. The corrections are to be
carried out only in the manner provided under Rule 13 of the Rules.
Wide powers are given to the Local Registrar for correction of entries

and for cancellation of entries and registration.
There may be
instances were an entry relating to marriage was fraudulently made
and the victim thereof is entitled to approach the Registrar for
cancellation of the entries or registration.
In the case of such
fraudulent acts, one of the parties to the marriage may be a victim of
fraud. But the parties to the marriage cannot approach the Local
Registrar and say that for a particular purpose they made a false
entry and since that purpose could not be achieved, they want to
resile from the declaration.
That is not the jurisdiction to be
exercised by the Local Registrar under Rule 13. That is not the
liberty provided to the parties to the marriage to apply before the
Local Registrar for correction and cancellation of the entries.
12. The remedy of the petitioner lies elsewhere and he cannot
make any application under Rule 13 of the Rules for the purposes
mentioned in the application.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
 MR.JUSTICE K.T.SANKARAN
MONDAY, THE 8TH DAY OF JUNE 2015
WP(C).No. 5911 of 2015 (L)

RAJESH RAJAN, Vs CHIEF REGISTRAR GENERAL OF MARRIAGES (COMMON),

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Whether ex gratia payment made to widow of person died in accident can be deducted from compensation payable to her?

 In view of above, this issue is no longer res integra. We hold that the amount which is payable to the applicant under ex-gratia payment could not have been reduced by deducting the amount paid under Workmen s Compensation Act. Applicant is entitled to get the difference of the amount. Accordingly, respondents are directed to release the deducted amount of Rs. 1, 78, 940/- to the applicant within a period of 8 weeks from the date of receipt of a copy of this order. We are not inclined to grant any interest in this case because applicant has herself approached the court with some delay, therefore, she would not be entitled to get any interest.

Central Administrative Tribunal - Delhi

Smt. Beghmati vs The General Manager on 25 November, 2010

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Whether court can grant more compensation than claimed in motor accident claim petition?

The learned counsel appearing for the insured would draw the attention of this Court to the ruling reported in (2003) 3 SCC 274(Nagappa v. Gurudayal Singh and others) where the Supreme Court has ruled that 'the Court is required to determine the just compensation and there is no other limitation or restriction for awarding such compensation and in appropriate cases where from the evidence brought on record if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award' and submits that the said ruling would empower the Court to enhance the compensation at the appellate stage even without the injured filing an appeal or cross objection. The counsel would further contend that the ruling reported in AIR 2003 SCW 1494 (Banarsi and others. v. Ram Phal) would not stand in the way for two reasons, (1) the ruling in Nagappa's case is by a three Judge Bench and (2) the subsequent ruling by two judges Bench in Banarsi's case has not considered the ruling in Nagappa's case.

34. All that the Supreme Court held in Nagappa's case is that the Tribunal or the Court can award more compensation than the one that has been claimed in appropriate cases. 

Delhi High Court

The New India Assurance Co. Ltd. vs Bal Kishan Pawar & Ors. on 31 May, 2012

Author: J.R. Midha

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In motor accident claim appeal, can claimant be awarded more compensation than what he had claimed?

It is the statutory duty of the Claims Tribunal to award 'just compensation' to the road accident victims. It must be fair, reasonable and equitable. In ascertaining the same, the Tribunal need not be carried away/bound by the amount mentioned in the claim petition.

26. Some times, in the claim petitions, the victims claim astronomical figures. Some times without really knowing their sufferings, they claim lesser amount. After evidence, assessing the just compensation, the Tribunal may arrive at more amount than the amount claimed.

27. In NAGAPPA Vs. GURUDAYAL SINGH [2004 (2)TN MAC 398 (SC): AIR 2003 SC 674] and TAMIL NADU STATE TRANSPORT CORPORATION Ltd., KARAIKUDI Vs. POTHUMPONNU AND OTHERS [2010 (1) CTC 104], it was held that the Tribunal has the power to grant more amount as compensation.

28. In RAJESH AND OTHERS Vs. RAJBIR SINGH AND OTHERS [2013 (3) CTC 883 : CDJ 2013 (SC) 485], a three- Judge Bench of the Hon'ble Apex Court considered this aspect and held as under:-

"13. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At Paragraph 10 of Nagappa's case (supra), it was held as follows:- "10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."

14. The principle was followed in the later decisions in Oriental Insurance Company Limited vs. Mohd. Nasir and another [AIR 2009 SC 1219] and in Ningamma and another vs. United India Insurance Company Limited [(2009) 13 SCC 710].

16. There is another reason why the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by Act No. 54 of 1994 with effect from 14.11.1994, the Report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under sub- Section (6) of Section 158 has to be treated as an Application for Compensation. ...............

19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation."

29. Thus, the Tribunals constituted under the Motor Vehicles Act in granting 'just compensation' can award more than the amount claimed in the claim petition.

Madras High Court

The Managing Director vs S.Yobu ..on 2 July, 2013

 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:  02/07/2013

Coram:
THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR.JUSTICE P.DEVADASS

C.M.A (MD)No.24 of 2011
and
M.P.(MD)Nos.1 of 2011 & 1 of 2012


The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,

Vs


1.S.Yobu   
2.C.Povas   
    

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Promotion of judges in trial courts under scanner

NEW DELHI: With the Supreme Court scrutinizing Parliament's decision to replace an opaque collegium system with National Judicial Appointments Commission, the Delhi High Court has entertained a senior trial judge's petition alleging that subordinate judiciary promotions were as non-transparent and arbitrary.

The Centre has strongly defended the NJAC saying the collegium system, which operated for nearly 20 years, had an inbuilt opaqueness on criteria adopted by the team of senior-most Supreme Court judges headed by the Chief Justice of India for selecting judges for the apex court and high courts.

Almost identical allegations were made by additional district and sessions judge Sujata Kohli in her petition before the Delhi HC. Her petition reflected long standing grievances of many senior judges in subordinate judiciary who feel that promotion policies for lower court judges adopted by various high courts are arbitrary and non-transparent.A bench of Justices G S Sistani and Sangeeta Dhingra Sehgal has issued notice to the Delhi HC, asking it to file response to the allegations made by Kohli in her petition.

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Whether compromise decree can be passed on basis of endorsement by advocate who has no vakalatnama in case?

A counsel, who has not been appointed by a party by executing a memorandum of appointment envisaged under Order 3 Rule 4 CPC (same as vakalath referred to in the Civil Rules of Practice, Kerala) may plead as permitted by the proviso to Order 3 Rule 4(5) CPC. In appropriate cases such power to plead may include even taking evidence or addressing arguments. But, he has no authority to compromise a suit, confess judgment in the suit or make an admission so as to bind the party. No court shall accept or act on such a compromise or confession or admission without verifying whether the Advocate doing so had been authorized by the party by executing a vakalathnama. A decree passed in a case on the basis of an endorsement by an Advocate, who has no vakalath in the case, cannot be said to be a consent decree.

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT:  MR. JUSTICE A.HARIPRASAD 

WEDNESDAY, THE 20TH DAY OF MAY 2015/

RSA.No. 1109 of 2013

APPELLANT(S)//APPELLANT/IST DEFENDANT

M/S. MANUEL SONS FINANCIAL ENTERPRISES (P) LTD

RESPONDENT(S)/RESPONDENTS/2ND DEFENDANT AND PLAINTIFF

RAMAKRISHNAN AND ANR.

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Woman fined Rs 1 lakh for misusing Domestic violence law against husband

NEW DELHI: A court here has dismissed a woman's complaint of domestic violence against her husband and in-laws, noting that she misused legal provisions as a tool to extort unjustified money from him for unjustified personal gain, and imposed a cost of Rs 1 lakh on her. 

Metropolitan magistrate Shivani Chauhan dismissed the complaint of the woman, a south Delhi resident, saying that she had falsified and concocted various allegations and suppressed important facts in order to harass her in-laws.
The court said that generally women are at the receiving end of domestic violence and the Protection of Woman from Domestic Violence (PWDV) Act is created solely with a view to provide relief to the victims of domestic violence and not to the perpetrators. It, however, noted that "the testimony of the complainant (woman) throws light on the conduct of the complainant and the extent, to which she has falsified and concocted various allegations and has suppressed important facts in order to harass the respondents (husband and parents-in-laws) and had misused the PWDV Act as a tool to extort unjustified money from respondent No. 1 (husband) for unjustified personal gain." 

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When suit for specific performance of contract is barred by limitation?

 A single Bench of this Court in the case of Maharudrappa v. Mahadevappa, MANU/KA/1184/2014: ((2014 (5) KCCR 578): 2013 (3) Kar.L.J. 684) has dealt with Article 54 of the Limitation Act. In paragraph 12 of the said decision, it is held that normally time is not the essence of the contract in respect of immovable properties, and it is clarified that the same does not give leverage to file a suit at any time. Paragraph 12 is relevant and is reproduced below:

'12. It is true that time is not essence of the contract in respect of immovable properties, but that does not give a leverage to the plaintiff to file a suit at any time he thinks it proper. Admittedly, the agreement of sale is dated 25.8.1986. The defendant is illiterate and specifically denied the genuineness of the said agreement. Though no time is fixed in the agreement of sale for executing regular sale deed, it does not mean that the plaintiff can sleep over his right and issue a notice and therefore contend that the suit was maintainable as it was filed within three years from the date of receipt of the notice or the date of reply given by the defendant.'

Admittedly no notice was got issued by the plaintiff before filing of the suit. Since the plaintiff has contended the (sic) defendant has chosen to file a suit for declaration of title and injunction in respect of the same property against him, it was virtually a not (sic) issued against him, and he should have filed the suit for seeking the reded (sic) specific performance. He kept quiet without enforcing his right though R.A. 13/04 was disposed of on 22.9.2005. But he chose to file the suit in the year 2008, i.e. on 28.6.2008.

8. What is argued by the learned Counsel for the appellant is that the suit was filed within 3 years from the date of disposed (sic disposal) of M.A. 13/04 and therefore it is in time. This Court is unable to accept the same. A Bench of three Judges in the case of Ahmadsahab Abdul Mulla (Dead by Proposed LRs) v. Bibijan and Others MANU/SC/0533/2009 : ([2009] 5 SCC 462) has discussed the provision of Section 54 of the Limitation Act at length. What is held in the said decision is that 'the expression 'date fixed for performance' is crystalized notion. When a date is fixed, it means there is a definite date fixed for doing a particular act. Even in the second part, the stress is on 'when the plaintiff has notice that performance is refused.' According to the Hon'ble Apex Court, there is a definite point of time when the plaintiff notices refusal, and in that sense both parts refer to definite dates and hence there is no question of finding out an intention from other circumstances.'

IN THE HIGH COURT OF KARNATAKA
KALABURGI BENCH
DATED THIS THE 17TH DAY OF DECEMBER, 2014
BEFORE
THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA
RFA.NO.6007/2012
BETWEEN
M/S UNIVERSAL ASSOCIATES DEVELOPERS
& PROMOTERS, SUPER MARKET, GULBARGA

Vs
SHRI. BHUPAT
S/O. RATILAL CHOUDA,

Citation;AIR 2015(NOC)681 KAR,2015(2) AKR 197, 2015(1)KCCR836

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