Sikkim HC: The Motor accident claim tribunal can not grant Future prospects or any other additional non-pecuniary heads in petition U/S 163A of Motor vehicle Act

 In light of all the foregoing discussions, we hold that

under Section 163A Future prospects or any other additional

non-pecuniary heads find no place and compensation in a Claim

Petition under Section 163A of the M. V. Act is to be strictly

computed on the structured formula provided in the Second

Schedule to the Act. The reference stands answered

accordingly. {Para 20}

 THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Appellate Jurisdiction)

MAC App. No.10 of 2018

Shriram General Insurance Company Limited Vs  Dilu Rai and Others

DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

Author: Meenakshi Madan Rai, J.

DATED : 4th APRIL, 2022.

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Sikkim HC: Act only insurance policy does not cover the risk of death of or bodily injury to a gratuitous passenger in any vehicle

  In Tilak Singh (supra) the pivotal issue was whether a statutory insurance policy under the MV Act, 1988 intended to cover risk to life or damage to properties of third parties would cover the risk of death or injury to a gratuitous passenger carried in a private vehicle. It was held as hereunder; “21. In our view, although the observations made in Asha Rani case [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.”

 THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Appellate Jurisdiction)

MAC App. No.08 of 2023

Jai Bahadur Subba and Others Vs  SBI General Insurance Company Ltd.

SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

DATED : 5th June, 2024

Read full judgment here: Click here.

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Sikkim HC: What is distinction between comprehensive/package policy and “Act policy for fixing liability of insurance company in motor accident claim petition?

 The Supreme Court in National Insurance Company Limited vs. Balakrishnan and Another10 distinguished between “Comprehensive/Package Policy” and “Act Policy” and inter alia observed that; “26. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act policy” stands on a different footing from a “comprehensive/package policy”. As the circulars have made the position very clear and IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “comprehensive/package policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act policy” which admittedly cannot cover a third-party risk of an occupant in a car. But, if the policy is a “comprehensive/package policy”, the liability would be covered……………………………………..”

It therefore concludes that a “Comprehensive/Package Policy” would cover the liability of the insurer to indemnify the occupant of a vehicle. Contrarily in an “Act Policy” the liability is confined to the limits set out in the Policy. {Para 8}

 THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Appellate Jurisdiction)

MAC App. No.08 of 2023

Jai Bahadur Subba and Others Vs  SBI General Insurance Company Ltd.

SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

DATED : 5th June, 2024

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Sikkim HC: Why an FIR Alone Can’t Prove Insurance Policy Breach in Motor Accident Claims?

The only evidence which the Appellants rely upon for the purpose of showing that there was a breach of a condition of the policy on the part of the insured of the vehicle having been given on hire to the deceased and her group, is the first information report lodged by Shrijana Pradhan, PW 2, who was also travelling in the same vehicle. No doubt, the statement recorded by the police of Manesar Police Station, Gurgaon, states that the vehicle was taken on hire, but this is in clear conflict with the statements made on oath before the Tribunal by the claimant No. 1 appearing as PW 1 and the maker of the F.I.R., the PW 2. It is a settled principle of law that an F.I.R. is not a substantive piece of evidence but only corroborative that can also be used for contradiction under Section 145 of the Evidence Act. The Appellants have not led any evidence at all, let alone produce evidence to prove that the vehicle was taken on hire by the deceased and her family. Therefore, the question of the F.I.R. corroborating the evidence of the insurers did not arise at all when they did not have any other evidence. The Appellant insurer also failed to confront the witness with the statement contained in the F.I.R. for the purpose of contradiction, an opportunity which was available to them under Section 145 of the Evidence Act. The Appellants could have easily produced the person who wrote down the F.I.R. as a witness to prove that the PW 2 had indeed made the statement before the police which had been denied by her in her deposition before the Tribunal. This having not been done, it is difficult for this Court to accept the contention of the insurer Appellant that the vehicle was given on hire. The sworn testimony of the witness made before the Tribunal, therefore, has to be given the necessary weight age over the one that is unsworn, and in this case unsigned statement, recorded by the police which in any case has only a corroborative value.

 IN THE HIGH COURT OF SIKKIM AT GANGTOK

M.A.C. Appeal No. 3 of 2009

Decided On: 17.05.2010

Branch Manager, Oriental Insurance Co. Ltd. and Ors. Vs. M.K. Subba and Ors.

Hon'ble Judges/Coram:

Sonam Phintso Wangdi, Actg. C.J.

Citation: 2011AIR Sikkim 28,2011 ACJ 1482, MANU/SI/0040/2010.

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What action Insurance Company can take if its agent has issued fake insurance policy?

The Learned Tribunal after considering the evidence on

record has reasoned in its impugned Judgments as follows;

MAC App. Nos.07, 08 and 09 of 2020 10

“27. Shri Bikash Roy Pradhan, the Branch

Manager of the Opposite Party No. 3 clearly admitted

that Shri Rajen Tamang is the authorized agent of

Opposite Party No.3. Exhibit-10 is the certified copy of

the Insurance Policy of the vehicle. In Exhibit-10, in

place of the details of the agent/Broker, the name

of Shri Rajen Tamang with his agent code number as

„BA000015623‟ has been clearly mentioned. Exhibit-

10 was served upon the Opposite Party No.3. The

Opposite Party No. 3 failed to produce and examine

Shri Rajen Tamang, Authorized Agent of Oriental

Insurance Company Limited (Opposite Party No. 3)

despite several opportunities having been given to it.

By perusal of Exhibit -10, it is difficult to identify the

fake and the genuine policy. There is no evidence

produced by the Opposite Party No.3 that the

Opposite Party No.1 owner of the vehicle had

involved himself or influenced the said Shri Rajen

Tamang to illegally issued the fake insurance policy to

him. The Opposite Party No. 3 has not exhibited any

complaint/document against the Opposite Parties No.

1, 4 or Shri Rajen Tamang, authorized agent of

Opposite Party No. 3 stating that the Opposite Parties

No.1 and 4 had obtained a fake insurance policy of

the Oriental Insurance Company Limited or Shri Rajen

Tamang handed over the fake insurance policy to the

Opposite Parties Nos.1 and 4 and the same was in

their personal knowledge. There is no evidence to the

effect that the Opposite Parties No.1 and 4 had

obtained fake insurance policy in collusion with the

staff or agent of Opposite Party No.3. From evidence

on record, no apparent role appears to have been

played by the owner in obtaining the fake insurance

policy. It is very difficult to pin point who is

responsible for issuance of the fake insurance policy.

It is unbelievable that an insured would obtain a fake

certificate by paying the same premium at his own

risk and peril. The Opposite Party No.4 Shri Biren

Gurung further establishes that in order to obtain

Exhibit-10, Opposite Party No.1 had given him ₹

14,500/. He personally knows Rajen Tamang as he

is the agent of the Opposite Party No.3. Opposite

Party No.4 paid a sum of ₹ 14,500/- to Rajen

Tamang, agent of the Opposite Party No. 3 through

one Palden Bhutia and Rajen Tamang handed over

Exhibit-10 to Opposite Party No.4. Opposite Party No.

4 further establishes that as per the direction of

Rajen Tamang, he handed over premium amount to

Shri Palden Bhutia. On the facts and circumstances of

the case at hand, it cannot be held that Opposite

Party No.1 (Owner of the vehicle) has any role to

play in issuance of the fake policy, on the other hand

evidence on the record cast suspicion towards the

authorized agent of the insurance company. Since,

Opposite Party No. 3 has admitted that Shri Rajen

Tamang is its authorized agent, there is master and

servant relation between the Opposite Party No.

3 and the said Shri Rajen Tamang. From this angle

MAC App. Nos.07, 08 and 09 of 2020 11

also Opposite Party No. 3 is liable for the act of the

said Rajen Tamang. However, the Opposite Party No.

3 is as liberty to conduct an inquiry against its agent

Rajen Tamang in respect of issuance of Exhibit 10 to

find out the actual fact as narrated supra and if found

guilty, it can recover the amount paid to the Claimant

by way of the Award in the instant claim petition from

the said Rajen Tamang.” [emphasis supplied]

13. The observations of the Learned Tribunal in arriving at

its conclusions is perfectly reasoned and brooks no interference.

{Para 12}

 THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Appellate Jurisdiction)

MAC App. No.07 of 2020

The Branch Manager, Oriental Insurance Company Limited Vs

 Padam Bahadur Rai and Others

Coram: Meenakshi Madan Rai, J.

DATED : 2nd December, 2022.

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Sikkim HC: The Pocso court should not allow questions in cross examination relating to character of prosecutrix

 What is preposterous about the cross-examination of P.Ws 7 and 8 is that the Court has allowed such a question to be asked to the witnesses, of which the response is recorded as, “It is true that I am not well acquainted with the character of the victim.” The Court has to bear in mind that the victim is a mere child of 11 years and there is no question of analysing her character, she being an innocent victim of a depraved and horrendous crime by the Appellant, even otherwise, it is now settled law that the character assassination of a victim finds no place in offences of rape. Section 33 of the POCSO Act specifically lays down that the questions to the victim shall be put through the Court which shall not permit aggressive questioning or character assassination of the child. Courts dealing with such matter are required to be sensitive and should prevent further traumatisation of the victim who have already suffered emotional upheavals and physical torment. {Para 11}

 In the High Court of Sikkim at Gangtok

(Before Meenakshi Madan Rai, J.)

Nar Bahadur Subba. Vs State of Sikkim 

Crl.A. No. 32 of 2015

Decided on October 7, 2016.

Citation: 2016 SCC OnLine Sikk 185 : 2017 Cri LJ (NOC 288) 86.

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How to appreciate evidence in case under POCSO Act?

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice. The evidence of a sole prosecutrix, if it inspires confidence, can definitely, as submitted by the learned Assistant Public Prosecutor, be the sole basis for conviction. However, the evidence in such cases must be of sterling quality. The defence has brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault. Although, we hasten to add that in some cases dependent upon the degree of violation, the lack of injury alone may not be a safe gauge. The defence has also been able to bring out certain facts

about the altercations and fight between them immediately preceding the lodging of the FIR (Exhibit-2) which also leans towards the claim of the innocence of the respondent.

15. Section 29 of the POCSO Act invoked by the learned Assistant Public Prosecutor at the appeal stage provides a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the POCSO Act. Charge was framed against the respondent under section 5(l) of the POCSO Act and therefore, section 29 of the POCSO Act may be attracted. We are, however, of the view that in order to shift the onus upon the accused by invoking the provision of section 29 of the POCSO Act, the foundational facts of the prosecution case must be established by leading evidence. In the present case, the learned Special Judge has disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. The disbelief is firmly based on the evidence in cross-examination of the complainant (PW-1), the minor prosecutrix and PW-3, the main witnesses. The disbelief was also fortified by the medical as well as forensic evidence which did not support the oral testimony of forceful penetrative sexual assault by the respondent and in fact overruled it. Sans the deposition of the minor prosecutrix, there is no other oral or material evidence. If, therefore, the deposition of the minor prosecutrix is disbelieved, there is no evidence in support of the prosecution‟s story. In such circumstances, the question of putting the onus upon the accused to prove his

innocence would be contrary to well settled principles of criminal jurisprudence. Had the testimony of the minor prosecutrix sustained judicial scrutiny, the mere lack of injuries alone may not have persuaded us to discard it. We, therefore, refrain from invoking the provision of section 29 of the POCSO Act on examination of the materials on record.

THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

DIVISION BENCH:  MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE

 MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE 

Crl. A. No. 07 of 2019

State of Sikkim Vs   Karna Bahadur Rai, 

Date of judgment : 14.03.2020

Bhaskar Raj Pradhan, J.

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How to ascertain when tenant should pay rent to landlord in absence of lease deed?

 The next contention of Learned Counsel for the Defendant was that the rent was payable on demand. Evidently no Lease Deed existed between the parties. The Plaintiff could furnish no document to establish that the rent was payable by the 10th of the succeeding month, similarly the Defendant was not in possession of any document to prove that rent was payable on demand. In the absence of such a document it is relevant to resort to the provisions of Section 106 of the Transfer of Property Act, 1882 (hereinafter "the TP Act"), which inter alia provides that in the absence of a contract or local law or usage to the contract, a lease of immovable property shall be deemed to be a lease from month to month terminable on the part of either a lesser or lessee by fifteen days" notice. I hasten to add that the Act of 1956 envisages no notice for eviction of a tenant, it merely requires proof of default in rent for four months or more hence Notice is not a mandate under the Act of 1956. Therefore, on applying the provisions of Section 106 of the TP Act it is evident that the tenancy shall be presumed to be a tenancy on a month to month basis. In this view of the matter, irrespective of lack of demand for payment of rent by the Plaintiff to the Defendant, it became incumbent upon the Defendant to pay the rent either at the end of the month or by the next month as was the practice, even if it was beyond the 10th of the next month. 

IN THE HIGH COURT OF SIKKIM AT GANGTOK

RFA No. 10 of 2016

Decided On: 01.10.2018

 Taramani Devi Agarwal Vs.  Krishna Company

Hon'ble Judges/Coram:

Meenakshi Madan Rai, Actg. C.J.

Citation: 2019(1) RCR(Rent) 38

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Whether it is permissible to Exhibit documents at subsequent stage?

The finding of the trial Court is not correct and erroneous. It has come on the record that the relevant documents were filed with evidence on affidavit, but could not be exhibited on account of lack of proper care by the Advocate, who withdrew later from the case. The petitioner has rightly sought for exhibiting the said documents which were left un-exhibited at the proper time. The objection put forth by the defendants/respondents was technical which hampers the administration of justice. The documents were already on record and as such the same are required to be exhibited and examined. The learned Judge ought to have allowed the application for exhibiting the same with notice to other side in the interest of justice. The purpose is to sub serve the justice, not to be influenced by technicality, without examining all the facts carefully.

5. Consequently, the impugned order dated 7-4-2016 to the extent of declining to exhibit the said documents is set aside. 

IN THE HIGH COURT OF SIKKIM

W.P.(C) No. 22 of 2016

Decided On: 07.10.2016

 Himalaya Distilleries

Vs.

 Commandant, Morigoan and Ors.

Hon'ble Judges/Coram:

S.K. Agnihotri, C.J.

Citation: AIR 2017 Sikkim 11

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Whether appellate court can impose more fine than fine which can be imposed by magistrate?

Coming to the next question of imposition of
fine to the tune of Rs.1,00,000/- (Rupees one lakh)
Section 28 of Cr.P.C. provides for imposition of sentences
by High Courts and Sessions Judges, as authorised by law
Section 29 prescribes that a Magistrate of the First Class
may, interalia, impose fine not exceeding Rs.10,000/-
(Rupees ten thousand) along with sentence of
imprisonment for an term not exceeding three years or
both. The Appellate Authority, as prescribed under 386(a)
of Cr.P.C. may impose sentence, according to law. Thus,
the Appellate Authority exercises the same jurisdiction
while examining a case for an offence punishable under
Section 365 IPC, which is triable by a Magistrate, First
Class, who does not have power to impose fine exceeding 
Rs.10,000/- (Rupees ten thousand). Accordingly,
imposition of fine of Rs.1,00,000/- (Rupees one lakh) is
without jurisdiction and as such it needs modification by
way of reducing it to Rs.10,000/- (Rupees ten thousand).
35. Resultantly, I modify and reduce the fine
amount from Rs.1,00,000/- (Rupees one lakh) to

Rs.10,000/- (Rupees ten thousand), 

HIGH COURT OF SIKKIM : GANGTOK

Kashikant Jha Vs. State of Sikkim

(Criminal Appellate Jurisdiction)

S.B. : HON’BLE MR. JUSTICE S. K. AGNIHOTRI, JUDGE

Crl.Rev.P.No.01 of 2015

Dated:20th June 2016.
Citation:2016 CRLJ 4003Sikkim

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Whether offence of forgery is made out even though forged documents are not used for committing fraud?

 It is eloquent from the aforestated judicial
pronouncements that the basic ingredients to satisfy the
definition of “forgery” is not that actual gain is to be
made or loss be caused to the public or any person. The
basic requirement is an intention which may be derived
from the conduct of the accused and also from other 
evidences. Plain reading of the definition of the “forgery”
as enshrined under Section 463 of the Indian Penal Code
(for short “I.P.C.”) makes it clear that making of any
false documents with intent to cause damage or injury or
to any person with intent to commit fraud amongst,
committing her forgery, is essential requirement.
31. It is apt to refer to an observation of the
Supreme Court in State of W.B. vs. Mir Mohammad
Omar and Ors,1 (Supra) which reads as under:-
“31. The pristine rule that the burden of
proof is on the prosecution to prove the guilt of
the accused should not be taken as a fossilized
doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption
is not alien to the above rule, nor would it impair
the temper of the rule. On the other hand, if the
traditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic
coverage, the offenders in serious offences would
be the major beneficiaries and the society would
be the casualty.
32. In this case, when the prosecution
succeeded in establishing the afore-narrated
circumstances, the court has to presume the
existence of certain facts. Presumption is a
course recognized by the law for the court to rely
on in condition such as this.”
32. In the case on hand, the documents (Exhibits
P-6 to P-9) were created by the convict with intention,
knowing fully well that the said documents may facilitate
the person concerned to obtain some benefit and cause
fraud on the person and authority. Commission of an
offence of fraud is not necessary. Thus, even if the 
documents could not be delivered or payment could not
be received and the same was not used for any purpose,
the forgery stands committed.
33. Accordingly, the entire acts come within the
definition of “forgery”. Once forgery is committed, the
convict/petitioner is liable to be convicted under
provisions of Section 465 of IPC. As a sequel, I have no
hesitation to hold that the impugned judgment rendered
by the Appellate Judge is just, proper and lawful.

HIGH COURT OF SIKKIM : GANGTOK
Kashikant Jha Vs. State of Sikkim

(Criminal Appellate Jurisdiction)

S.B. : HON’BLE MR. JUSTICE S. K. AGNIHOTRI, JUDGE

Crl.Rev.P.No.01 of 2015


Dated:20th June 2016.
Citation:2016 CRLJ 4003Sikkim

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When accused can not be convicted both under IPC and POCSO Act?

http://www.highcourtofsikkim.nic.in/downloads/judgment/Judgment2016/April/Bishal%20Lamgadey%20vs%20State%20of%20Sikkim.pdf
Bishal lamadey v state of sikkim
Citation:2016 CRLJ3443 Sikkim
Double jeopardy-Accused prosecuted under IPC And POCSO Act for offence of rape -cannot be convicted and sentenced under provision of both Acts-amounts to double jeopardy-Hence sentence imposed under POCSO Act is liable to be set aside.

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Whether resolution passed by UGC regarding distance learning course is statutory in nature?

As regards the status and legal position of
the UGC, it was held that UGC Act, 1956, under which
it has been created, has a supervening influence over
all other Legislations on the subject of education for
maintenance of minimum standards in the country and
indisputably governs Open University also. Thus, the
resolution adopted in the 40th Meeting of the DEC dated
08-06-2012, Annexure P34, to confine the territorial
jurisdiction of the Private Universities within the
geographical limits of the States of its locations, having
been taken as a consequence of a policy decision of the
Government of India, it cannot be held to be
unauthorised and invalid. The policy decision
ultimately crystallised in the form of Order dated 29-
12-2012, Annexure R4. This Order having been issued
by the Ministry of Human Resource Development, 

Department of Higher Education, Government of India,
Respondent No.1, in exercise of its powers under SubSection
(1) of Section 20 of the UGC Act, 1956,
assumes a statutory character and would be considered
as part of the main Statute, i.e., UGC Act, 1956, and
binding upon all Universities irrespective of whether the
other Statutes including the ones under State
Legislations provide otherwise. This is so far as the
questions of law are concerned.
THE HIGH COURT OF SIKKIM : GANGTOK

S.B. : HON’BLE MR. JUSTICE S. P. WANGDI, JUDGE

WP(C) No.08 of 2015
Petitioners : 1. Mr. Pralhad Dani Chhetri,


 versus
Union of India


(29th June, 2015)
Citation:AIR 2016 (NOC) 560 skm

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