MACT – House Wife

2015 STPL(Web) 1616 ALLAHABAD (ALL)(DB) - Compensation enhanced

HANSNATH YADAV & ORS. Vs. U.P. STATE ROAD TRANSPORT CORPORATION LTD.

Motor Vehicles Act, 1988 – Sections 166, 168 and 173 – MACT – House Wife – Gratuitous services rendered by wife/ mother cannot be equated with services of an employee – No evidence or data can possibly be produced for estimating value of such services – Compensation enhanced – Claimants are husband and her four sons – Held that it is highly unfair, unjust and inappropriate to compute compensation payable to dependents of a deceased wife/ mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period – It is virtually impossible to measure in terms of ‘money the loss of personal care and attention suffered by husband and children on demise of housewife – In absence of any other definite criteria for determination of compensation payable to dependents of a non-earning housewife/mother, it would be reasonable to rely upon criteria specified in Clause (6) of the Second Schedule and then apply appropriate multiplier – Approach adopted by different Benches of Delhi High Court to compute compensation by relying upon minimum wages payable to a skilled worker does not commend approval of this Court because it is most unrealistic to compare gratuitous services of housewife/mother with work of a skilled worker – Impugned award is modified by enhancing compensation from Rs. 2,29,500 to Rs. 6,30,000 along with interest at rate of 9% p.a. – Appeal allowed.

MACT – Compensation

2015 STPL(Web) 1615 CALCUTTA (CAL)(DB) - Compensation enhanced

MAJERA BIBI & ORS. Vs. ORIENTAL INSURANCE CO. LTD. & ANR.

Motor Vehicles Act, 1988 – Sections 163A and 173 – MACT – Compensation Enhanced – Amount payable under Section 163 A is not dependent on amount claimed by claimant – Compensation enhanced – Not accepted impugned findings that simply because widow/PW1 could not produce any proof of victim’s income her evidence of income remaining virtually unchallenged should be disbelieved – Tribunal was not justified in disbelieving evidence of PW1 that from his potato business her deceased husband used to earn Rs. 3,000 per month – It is not law that claimants could not get more than Rs. 2 lakh mentioned in application, if they were found entitled to a higher amount; for what they were to be paid was a compensation according to provisions of Second Schedule – As to entitlement to higher amount, decision in Nagappa supports proposition – Although Tribunal found that appellants were entitled to compensation, for undisclosed reasons it did not grant them general damages – They were entitled to general damages on account of funeral expenses loss of consortium, loss of estate and medical expenses – But nothing was granted – Tribunal committed an error by not granting interest from date of application for compensation was filed till date of payment – Compensation enhanced from Rs. 1,60,000 to Rs. 4,41,500 with interest @ 8% p.a. – Impugned award is modified substituting of Rs. 4,41,500 for Rs. 1,60,000 – Appeal allowed.

Murder – Conviction Set aside

2015 STPL(Web) 1614 HP (HP)(DB) - Acquittal

LABH SINGH Vs. STATE OF H.P.

Indian Penal Code, 1860 – Section 302 – Murder – Conviction Set aside – Story not believable – witness actually not seen the accused so he cannot identify him by certainty – Omission to send viscera for FSL examination to know exact cause of death as one witness admitted he saw the deceased in a drunken and staggering condition – Star witness find deceased murdered in verandah of the ‘Sarai’– He also find another person, who was lying in the other corner of the verandah of the ‘Sarai’ had covered himself with a chadar (sheet) and was sleeping – He did not try to see his face and rushed to his house when he come back that person had already left that place – He apprehended accused on telling by some other person.– No Chader(Sheet) was found recovered in record from accused. Held: Significant omission by star witness by not seeing the face of suspect on spot by lifting chadar from his face – The other person who told him about accused not examined in court not even his identity disclosed – Identity of person to be same person seen by witness not established – False implication of accused looking probable – Deceased having on account of his being heavily inebriated fallen and sustained injuries – Deceased pant seems to be planted on accused to connect him with murder – Conviction set aside.

NDPS – Conviction Set aside

2015 STPL(Web) 1613 HP (HP)(DB) - Acquittal

NARESH KUMAR Vs. NARCOTICS CONTROL BUREAU

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20 – NDPS – Conviction Set aside – Related records not prepared at the site of seizure – No immediate information of seizure to related police station – Story doubt full – Many events missing in police records which show that seizure not take at place where it is alleged – Held: throughout omitted to comply with their legally enjoined duties for imbuing truth to the genesis of the prosecution version, obviously, stains or taints the prosecution version. Conviction set aside – Acquittal.

Rejection of Plaint

2015 STPL(Web) 1612 DELHI (DEL) - Rejection of Plaint not allowed. Amendment in pleadings allowed.

SANJAY BHARGAVA Vs. SEEMA BHARGAVA

Civil Procedure Code, 1908, Order 7 Rule 11(a) & (b) – Rejection of Plaint – Application for – Held that at the stage of considering an application under Order 7 Rule 11 CPC the Court has to examine only the plaint averments, and the list of documents filed along with the suit – Other pleas advanced by parties, including the pleadings in the written statement, have no relevancy in order to decide the application.

Acquisition of Property in India

2015 STPL(Web) 1611 DELHI (DEL) - Suit Dismissed

VIRTUS DORDRECHT B.V. & ANR. Vs. VIKRAM BHARGAVA & ORS.

Foreign Exchange Regulation Act, 1973, Section 31(1) – Immovable Property – Restriction on acquisition – In view of the provision of Section 31(1) of the Act, 1973 plaintiffs not citizen of India could not have purchased any immovable property situated in India without seeking prior permission of Reserve Bank of India – Even a joint venture company could not have purchased the same unless incorporated under the laws in force in India – Admittedly, no such prior permission was taken by the plaintiffs, thus, no such land in Rajasthan could have been purchased in the name of plaintiffs – Plea of plaintiffs that it was agreed by and between the plaintiffs and defendant nos. 1 and 2 that the land would be purchased in the names of plaintiffs, on the face of it, is improbable and cannot be accepted.

Service Law – Promotion

2015 STPL(Web) 1610 CAT (CAT)(DB) - Application allowed

B.S. MOHANTY & ORS. Vs. UNION OF INDIA & ORS.

Central Civil Services (Revised Pay) Rules, 2008 – Rules 5, 6, 7 and 11 – Administrative Tribunals Act 1985 – Section 19 – Service Law – Promotion – Similar Treatment – Fixation of pay – Found that applicants are similarly situated as applicants in O.A. No. 293/2011, applicants are, therefore, entitled to the same benefits as has accrued to applicants in OA No. 293/2011 and in line with referred judgments of the Hon’ble Supreme Court, including decision in State of Karnataka and Others v. C. Lalitha, Appeal (Civil) No. 919/2002, similarly situated persons should be treated identically and only because one person has approached the Court would not mean that other similar situated persons would be treated differently – Therefore, held it appropriate that the same treatment be meted out to applicants as well as those given to applicants in OA No. 293/ 2011 – O.A. allowed.

Service Law – Confidential Report

2015 STPL(Web) 1609 CAT (CAT) - Direction to fresh look on consideration

MUKUND PURUSHOTTAM JAEEL Vs. UNION OF INDIA & ORS.

Service Law – Confidential Report – Promotion – Rules for writing Confidential Reports – Guidelines – Representation against below bench mark grading in Annual Performance Appraisal Report – Rejected – Merit as reflected in confidential reports is generally recognised as main criterion for deciding cases of promotion to higher grades – Vague remarks, non-specific remarks, ordinarily should be avoided – Remarks should be based on facts and on basis of objective consideration – No employee should be adversely affected by prejudicial reports recorded without fullest consideration – Applicant was not given any memo or occasion that his performance did not warrant grade of “Very Good” – Reporting Officer without specifying his shortming, if any made casual, vague and nonspecific comments like “Reasonable” and “Moderate” – Held that impugned order suffers from total non-application of mind since applicant was not upgraded from “Average’ to “good” in almost all attributes – APAR which was supplied to applicant shows that applicant was given “good” grading and not “Average” – Impugned communication cannot be sustained, the same is set aside and quashed – Respondents are directed to give a fresh look by considering representation of applicant – O.A. allowed.

Public Premises – Encroachment

2015 STPL(Web) 1608 HP (HP)(DB) - Eviction order upheld

KISHANI DEVI Vs. STATE OF H.P. & ANOTHER

Public Premises and Land (Eviction and Rent Recovery) Act, 1971 – Section – Public Premises – Encroachment – Issuance of show cause notices – Petitioner were duly represented through their counsel – Petitioners were ordered to be evicted from property in dispute – Even if, assumingly, petitioners may have acquired title to suit property by way of adverse possession, said contention would have succored vindication, in case, petitioners had placed on record a decree granted in their favor by a Civil Court of competent jurisdiction declaring them to have become owners of land/property in dispute by statutory prescription – However, such evidence is amiss – In absence of a decree of Civil Court of competent jurisdiction in their favor, there is no substance or vigour in contention of petitioners that they have acquired title to suit property by way of adverse possession and that, it, bars respondents to recover possession of land/property in dispute from them – Petitions dismissed

Anticipatory Bail – Cruelty

2015 STPL(Web) 1607 HP (HP) - Bail Granted

MEENA KUMARI Vs. STATE OF HIMACHAL PRADESH

Code of Criminal Procedure, 1973 – Section 438 – Indian Penal Code, 1860 – Sections 498-A, 506 and 34 – Anticipatory Bail – Bail is Rule and Committal to Jail is Exception – Refusal of bail is a restriction on personal liberty of individual guaranteed under Article 21 of the Constitution – It was held that it is not in the interest of justice that accused should be kept in jail for indefinite period – It is well settled law that accused is presumed to be innocent till convicted by competent Court of law – Even as per police report there is no evidence against applicant as of today although allegations have been leveled against applicant that applicant has illicit relations with husband of complainant – Bail is granted subject to conditions that applicant will abide by all terms and conditions of Court Prayer for acceptance of bail application sought – Application allowed.

Condonation of Delay

2015 STPL(Web) 1606 NC (NC) - Not allowed

PSPCL, (FORMERLY KNOWN AS PSEB) Vs. MANOJ WADHWA

Consumer Protection Act, 1986—Sections 15, 17, 19 and 21 – Limitation Act, 1963 – Section 5 Condonation of Delay – Not Allowed – Delay of 106 days in filing revision – Plea of file misplaced Held: There must be some cause which can be termed as sufficient one for the purpose of delay condonation – Application is vague, evasive and leads Commission nowhere – Such type of stories can be easily created – The excuse taken in the application for condonation of delay is far from satisfaction. – No codonation of delay allowed.

Housing – Demand

2015 STPL(Web) 1605 NC (NC) - Extra demand quashed

RAJASTHAN HOUSING BOARD Vs. S. RAJKUMAR SINGH

Consumer Protection Act, 1986—Sections 15, 17, 19 and 21 – Housing – Demand – The State Commission found glaring disparity in the two letter of demand. The State Commission took the view that the petitioner Board had illegally raised the demand – Extra demand quashed – Revision by OP – Complainant directed to pay interest on amount of arrear. OP to handover the possession of house in question to the complainant only on receipt of the amount along with interest.

Employee Compensation – Relationship of Employer Employee

2015 STPL(Web) 1604 DELHI (DEL) - Appeal by Employer dismissed

MOHAN LAL VS. CHHOTE LAL & ORS.

Employee’s Compensation Act, 1923 – Sections 12 and 30 – Employee Compensation – Relationship of Employer Employee – Proved – No substantial question of law arose in appeal – Not permitted re-appraising of findings of facts in appeal – Appeal not maintainable – Commissioner held that respondent No. 1 was working at site in question and was employed as a mason by contractor/respondent No. 2 under whom workman was employed for working at site of appellant – In terms of Section 12 of the Act, there is joint and several liability of not only Contractor who actually employed mason/workman, but also of person at whose site work is going on and where employee does work – Owner of site is referred to as principal in Section 12 – Appellant failed to discharge onus by filing documents to show that it was his son who was owner of site where work was being carried on and not appellant – Courts are mandated not to interfere with findings and conclusions of Commissioner – Appeal allowed.

Execution – Adjustment of Payment

2015 STPL(Web) 1603 DELHI (DEL) - Amount deposited to be adjusted first towards interest

UNITED INDIA INSURANCE CO. Vs. KANWAR LAL & ORS.

Code of Civil Procedure, 1908 – Order XXI Rule 1 – Execution – Adjustment of Payment – Payment made by judgment debtor – Amount deposited to be adjusted first towards interest – The Supreme Court held that the payment made by judgment debtor to decree holder has to be appropriated first towards interest and costs and then towards principal – Held that judgment dated 27th April, 2012 does not warrant any review as it is clear from impugned award that respondents are entitled to interest on principal award amount of Rs. 6,73,822 @ 7% per annum from date of filing of claim petition before Tribunal i.e. 22nd September, 1999 up to realization in terms of award of Tribunal – However, respondents shall be entitled to interest on principal award amount of Rs. 6,73,822 from 11th November, 2009 @ 7% per annum till realization of amount – Second prayer of respondent Nos. 1 and 2 for enhancement of rate of interest from 7% to 9% is not warranted and is, therefore, rejected – Appeal disposed of.

Eviction – Bona fide Requirement

2015 STPL(Web) 1602 DELHI (DEL) - Eviction allowed

NARESH GUPTA Vs. RAJINDER KUMAR

Delhi Rent Control Act, 1958, S.25-B(8), 14(l)(e) – Eviction – Bona fide Requirement – Leave to Defend – Bona fide necessity petition filed by respondent/landlord on ground that he needs premises for opening business of restaurant by his son who has got graduation degree in Hotel Management – Held, it is settled law that negative defences cannot create a triable issue – Mere self-serving denial of ownership of respondent/landlord cannot create a triable issue once respondent/landlord has filed sale deed by which property was purchased and there is nothing on record that original owner has in any manner disputed sale deed or is disputing ownership of respondent/landlord – Property of sister-in-law can not be said to be alternative accommodation – Petitioner/tenant failed to show any vacant alternative premises which would be available to respondent/landlord and his son for carry on business of restaurant – Dismissed of leave to defend application proper – Petition dismissed.

Rape – Acquittal Set aside

2015 STPL(Web) 1601 DELHI (DEL)(DB) - Conviction

STATE Vs. SUJEET KUMAR

Indian Penal Code, 1860, S.376 – Criminal Procedure Code, 1973, S.378(3), 164 – Rape – Acquittal Set aside – Validity – Four years old girl alleged to have been raped by accused – Prosecutrix in her testimony in Court described in sufficient detail incident of rape which happened with her and also identified accused as person who had ravished her – Presence of blood of prosecutrix on underwear of accused corroborates testimony of prosecutrix that accused had raped her – Testimony of prosecutrix that accused had raped her inspires confidence, particularly when no motive has been assigned to prosecutrix and her family members by accused for his false implication – Held, acquittal set aside – Appellant convicted of charge framed against him i.e. of raping prosecutrix – Secretary (Health), Government of NCT of Delhi directed to ensure that prosecutrix receives best possible medical treatment, and if necessary at a reputed private hospital for which expenses shall be borne by State – Appeal allowed.

Anticipatory Bail – Rape with Promise to Marry

2015 STPL(Web) 1600 BOMBAY (BOM) - Anticipatory bail granted

MAHESH BALKRISHNA DANDANE Vs. STATE OF MAHARASHTRA

Indian Penal Code, 1860—Sections 420,406,376,323 and 506(2)—Criminal Procedure Code, 1973—Section 438 – Anticipatory Bail – Rape with Promise to Marry – Held: Both the accused and complainant are graduated in law, A fact of their sexual relationship is admitted. Their relations were going on for a long. The photocopy of SMS prima facie discloses that complainant had an idea that accused has decided to marry other girl. Prima facie it does not appear from the record that the complainant was either forced to keep sexual relationship or she was really induced to such an extent that she has no other option but to keep physical relationship with the accused. Even though if at all there is bonafide promise to marry and the girl chooses to keep physical relationship with that person and if a boy withdraws his promise, as they are not psychologically comfortable with each other, then it cannot bring that particular act within the purport of offence under section 375 of IPC. The complainant is an educated girl and it shows that it was her conscious decision to keep sexual relations with him. Prima facie at this stage, possibility of noncommittal, consensual relationship cannot be denied. Bail granted.

Bail – Surrender of Passport

2015 STPL(Web) 1599 AP (AP) - Directions modified

WILLIAM SCOTT PINCKNEY Vs. STATE OF A.P.

Indian Penal Code, 1860 – Sections 420, 385 read with 120-B – Prize Chits and Money Circulation Schemes (Banning) Act, 1978 – Sections 3 to 6 read with Section 2(c) – Criminal Procedure Code, 1973 – Section 439 – Bail – Surrender of Passport – Keeping the passport with investigation officer – Held: Where person is accused of crime in India passport can be refused or a travel permit even can be refused. Better to direct to deposit passport with concerned Court or CID superior official so that whenever any permission to leave country applied in that court and can ask for permission to take passport and surrender back – Application partly allowed – Direction to deposit passport with senior officer. Condition of appearing before investigation also relaxed.

Service Law – Promotion

2015 STPL(Web) 1598 CAT (CAT)(DB) - Directions issued

GULAB HARIBHAU DHABALE & ORS. Vs. SANJAY R. SOMKUWAR & ORS.

Service Law – Promotion – Clubbing SC/ST with general candidates in zone of Consideration – It would defeat very purpose of reservation – Petitioners fulfilled eligibility criteria of 8 years regular service as per Recruitment Rules – They were within zone of consideration – Respondents failed to take any action to fill up back log vacancies – Held that mandate of the Hon’ble Supreme Court was that there has to be a separate zone of consideration for SC/ST candidates and clubbing these category with general category for purpose of preparation of zone of consideration was not permissible, as the same was antithesis to object of reservation – Respondents are directed to determine a separate zone of consideration for SC/ST category for promotion to grade of Superintendent Group ‘B’ – O.A. allowed.

Medical Treatment – Benefit of

2015 STPL(Web) 1597 CAT (CAT)(DB) - Medical benefit to son not granted

CHANDRA BHAN YADAVA Vs. UNION OF INDIA & ORS.

CGHS & Central Services (Medical) Attendance Rules, 1944 – The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 2(i) – Constitution of India, 1950 – Articles 14, 19 and 21 – Medical Treatment – Benefit of – Applicant’s son was not entitled to receive medical treatment beyond age limit – Denial of continuance of CGHS facilities to son of applicant after his transplantation of kidney was justified – Also not found any infirmity in view taken by respondents that renal failure is not a part of disability covered under the Disabilities Act – OM is based on reasonable classification and is based on a policy duly notified by respondents on such reasonable classification – Thus, applicant’s son cannot be given CGHS benefit under disabilities category also – Under said directions of the Hon’ble Apex Court, Statutory Tribunals are not to interfere in matters of policy since it lies with competence of Government to change policy and rules relating to benefits of service etc. – Not found sufficient reason to interfere with impugned decision of respondents – O.A. dismissed.

MACT – Breach of Policy

2015 STPL(Web) 1596 JHARKHAND (JHAR) - No breach of policy. Insurer liable.

KAPILDEV CHAUDHARY Vs. AJMERUN BIBI & ORS.

Motor Vehicles Act, 1988 – Sections 2(21) and 149(2)(a) or (b) – MACT – Breach of Policy – Driver was having valid licence to drive HMV – Liability be indemnified by insurer – Found that owner had taken efforts to satisfy him before handing over vehicle to driver and a test was taken – Furthermore, driver himself has appeared before this Court and produced licence challenging it to be valid – Under such circumstances owner of vehicle cannot be fastened with liability to pay compensation, if vehicle at time of accident was plying under a valid insurance policy – Impugned finding of Tribunal that appellant/owner is liable to pay compensation amount is set aside and it is held that compensation amount awarded by Tribunal shall be paid by respondent/Insurance Company – Appeal allowed.

MACT – Interest

2015 STPL(Web) 1595 CALCUTTA (CAL)(DB) - Bank rate should be followed

NIVA DEVI Vs. NEW INDIA ASSURANCE COMPANY LTD. & ANR.

Motor Vehicles Act, 1988 – Section 171 – MACT – Interest – Bank rate should be followed – Date relevant for fixing interest rate is date of award – Not from date of filing of application for compensation – It is evident that the Supreme Court has laid down principle that rate of interest to be granted under Section 171 should be fixed on basis of term deposit interest rates of nationalized banks – No specific reason was given for fixing rate at 6% – Hence it cannot be said that in 2006 bank term deposit interest rate was 6% p.a. – This Court has been informed that recently this organization has declared 8.5% interest for its members – Held that it is necessary to follow a consistent rate fixed on basis of sound principles -Appellant is entitled to 8% p.a. interest from November 10, 2006 till date of payment – Impugned award is modified – Appeal allowed.

Civil Procedure – Granting Leave to File Appeal to Third Person

2015 STPL(Web) 1594 HP (HP) - Grant upheld as public interest involved

GANGA RAM Vs. STATE OF H.P.

Code of Civil Procedure, 1908 – Sections 151 and 96 – Civil Procedure – Granting Leave to File Appeal to Third Person – Saving of Inherent Powers of Court – Application for granting leave to file appeal – It is proved on record that over suit land interest of general public is involved – It is well settled law that Court can grant permission to third person to file appeal under Section 151 CPC in order to protect interest of general public and in the ends of justice – It is held that Section 151 CPC did not limit inherent powers of Court to pass order which is necessary in the ends of justice or to prevent abuse of process of Court – Found that permission to both defendants was necessary for ends of justice because plaintiff has concealed factum of former civil suit No 110/1 of 1984 in civil suit wherein matter in former civil suit and matter in subsequent civil suit were directly and substantially in issue – Held that First Appellate Court has permitted both defendants to file appeal in ends of justice and to prevent abuse of process of Court – Objections are not sustained – RSA dismissed.

Service Law – Regularization

2015 STPL(Web) 1593 HP (HP) - Ad Hoc Appointment not entitled for regularization

RAM DASS Vs. H.P. STATE ELECTRICITY BOARD

Constitution of India, 1950 – Articles 226 and 320 – Service Law – Regularization – Ad Hoc Appointment not entitled for regularization – An employee appointed as a stop gap arrangement cannot claim regularization merely because vacancies are existing – It is well settled law that candidate working on adhoc basis have to give place to candidate selected in accordance with law – It is well settled law that under Article 320 of the Constitution Government cannot take any decision contrary to Constitution to regularize service of employee dehors recruitment Rules and statutory process of selection – Held that respondent/Board will pay salary of Clerk to petitioner with all consequential benefits along with interest @ 9% per annum from date of working of petitioner as Clerk as stop gap arrangement subject to adjustment of salary already paid for post of T-mate – Prayer to change cadre of petitioner to ministerial cadre by treating him as Clerk is declined – Other relief(s) claimed by petitioner declined – Writ Petition disposed of.

Domestic Violence – Shared Household

2015 STPL(Web) 1592 DELHI (DEL)(DB) - Right granted

NAVNEET ARORA Vs. SURENDER KAUR & ORS.

Protection of Women from Domestic Violence Act, 2005, S.2(s), 19(l)(a) – Domestic Violence – Shared Household – Right of residence – Held, plain language of the Act. viz. s.2(s) read in conjunction with S.19 (1)(a) is unambiguous and enables an aggrieved person to claim ‘right of residence’ in a household even though aggrieved person or respondent may have no right, title or interest in said household, if aggrieved person and respondent have lived therein by establishing a domestic relationship with joint family of which respondent is a member and to which such household belongs – In present case, before appellant married her husband (deceased), he was living as one family with his parents – Two sons and their father were joint in business and kitchen was run from joint business income – They were all living on ground floor – All lived in commensality – Appellant never left joint family house – She continued to reside there even till today – Held, her right to residence in suit property i.e. shared household cannot be denied.

Specific Performance – Agreement to Sell

2015 STPL(Web) 1591 DELHI (DEL) - Suit decreed

EXPRESS TOWERS PVT. LTD. & ANR. Vs. MOHAN SINGH & ORS.

Specific Performance of Contact – Suit for – PW-1 has proved agreement to sell dated 21.05.1987 whereby defendants No.1 and 2 had agreed to sell suit property in favor of plaintiff for consideration of Rs.23,50,000/- – Evidence on record shows that entire sale consideration has been received by Defendants No.1 and 2 – Defendant Nos. 1 and 2 did not challenge compulsory acquisition on basis of order passed by appropriate authority – No steps taken for recovery of amount in pursuance of acquisition order – Appropriate authority directed to release amount of Rs.22.50 lacs balance sale consideration in favor of defendant Nos.1 and 2 – Held, in equity, at the most plaintiff can be directed to pay interest at appropriate rate from date of agreement to sell till amount of Rs. 22.50 lacs released in favor of defendant Nos.1 and 2 – There is great delay in execution of sale deed in favor of plaintiffs yet plaintiff has already been handed over title deeds and possession of suit property by appropriate authority in pursuance of order dated 12.12.2001 – Conduct of plaintiff shows equities are highly balanced in its favor – In view of his vociferous contest of pre-emptive purchase and ultimate success in writ petition, plaintiff is entitled to decree for specific performance of agreement to sell in question – Suit decreed.

Quashing FIR – Forgery

2015 STPL(Web) 1590 RAJASTHAN (RAJ) - FIR Quashed

RATAN LAL Vs. STATE

Indian Penal Code, 1860 – Sections 420, 467, 468, 471 and 120B – Criminal Procedure Code, 1973—Section 482 – Quashing FIR – Forgery – Quashed – Allegation of forging a partition deed – Charge sheet was filed by police – Petitioner produced un-controverted and public document of sale deed made by complainant. Held: Sale deed is the admitted document of the parties wherein specific narration has been mentioned that land has been partitioned and actual possession of the sold land has been handed over to the purchaser, which rules out and discarded the contention of the prosecution that signatures on the partition deed are forged or no such partition deed has been signed by-the respondent. Prosecution was motivated by malice and complaint was filed to abuse the judicial process and to harass the petitioner. Complaint quashed.

Murder – Acquittal Upheld

2015 STPL(Web) 1589 ALLAHABAD (ALL)(DB) - Acquittal

STATE OF U.P. Vs. INDRAPAL SINGH

Indian Penal Code, 1860—Section 302/ 34 – Murder – Acquittal Upheld – Appreciation of evidence – Motive of murder of naming accused in theft case many months ago, found to be very week. Material contradictions in statement of witnesses – Independent witness of recovery of weapon at the instance of accused did not support the case – Held: The statements of witnesses are insufficient and lacking to complete the chain of circumstance for proving the guilt of the accused persons. The conclusion arrived at by the learned trial Court that the evidence of the prosecution is not reliable to prove the guilt of the accused persons beyond all reasonable doubts suffers from no legal or factual infirmity.

Insurance – Repudiation of Claim

2015 STPL(Web) 1588 NC (NC) - Complaint partially allowed

NATIONAL INSURANCE CO. LTD. Vs. SHRI V.L. JAIN

Consumer Protection Act, 1986—Sections 15, 17, 19 and 21 – Insurance – Repudiation of Claim – Mediclaim – Repudiation on ground of exclusion clause – Revision by insurer against partially allowing complaint – Held: There is absolutely no medical evidence on record which would show that the coronary artery disease. Hypertension may be one of the possible causes of CAD but certainly is not the only cause which can cause CAD. The onus is upon the company to prove that the case was covered under the exclusion clause. No such evidence having been led, we cannot accept the contention that the coronary artery disease suffered by the wife of the complainant was directly attributable to the hypertension from which she suffered at the time the policy was taken for the first time. No merit in revision – Dismissed.

Insurance – Claim

2015 STPL(Web) 1587 NC (NC) - Complaint dismissed

ASHOK FUEL BRINQUETTS Vs. NATIONAL INSURANCE COMPANY LIMITED, HAVING ITS REGIONAL OFFICE AT S.C.O.

Consumer Protection Act, 1986—Sections 15, 17, 19 and 21 – Insurance – Claim – Complainant asking for what assessed by surveyor – Complaint dismissed by State Commission on ground that amount already received from insurer was received as full and final – Revision – Report of Surveyor is based on agreement reached with complainant – It also contains clear computation of how agreed figure of Rs. 35,750/- was arrived at – The argument advanced on behalf of the revision petitioner can find no legs to stand on. Revision Petition dismissed.

Service Law – Time Related Continuity Allowance

2015 STPL(Web) 1586 CAT (CAT)(DB) - Remand back

ARUN TRIMBAKRAO DESHMUKH Vs. POST MASTER GENERAL & ORS.

Extra Departmental Agents (Conduct and Employment) Rules, 1964 – Rule 17 – Gramin Dak Sevak Conduct & Employment Rules, 2001 – Rule 12 (3) – Central Civil Services (Classification, Control and Appeal) Rules, 1965 – Rules 3 (2) and 54 (B) – CCS (CCA) Rules 1964 – Service Law – Time Related Continuity Allowance – Demand of – Reinstatement – Representation for regularization of period of put off duty from till his reinstatement – A departmental proceeding was initiated against him, for alleged misappropriation of amount and failing to maintain account books – Since penalty was imposed upon him, nor any reasons are recorded in impugned order for denying said relief of grant of allowance to applicant and treating said period as leave without TRCA – Not found any force in contention of applicant that by virtue of provisions of FR 54(3), applicant is entitled to get allowance for deemed duty off period, since he is not governed by the CCS (CCA) Rules – Impugned order passed by respondent No. 3 declining to count period from removal till reinstatement as leave with pay is set aside – Matter is remanded to respondent No. 3 for passing reasoned order in respect of claim for getting allowance for said intervening period from date of removal till date of his reinstatement – Application allowed.

Service Law – Medical Fitness

2015 STPL(Web) 1585 CAT (CAT)(DB) - Matter depend on judgment on pending writ before High Court

MAHINDER SINGH & ORS. Vs. DELHI TRANSPORT CORPORATION & ORS.

Persons with Disabilities (Equal Opportunities, Right of Protection and Full Participation) Act, 1995 – Section 47 – Service Law – Medical Fitness – Appointment as Drivers by deceitful means – Protection under Section 47 of Disabilities Act – Entitlement to – Mere issuance of show cause notice would not tantamount to any decision – In absence of any decision on show cause notice, it would be premature to judge whether or not show cause notice would lead to order of termination or to adjudicate in absence of any decision before this Court – Applicants at this stage cannot claim such protection as long as their services have not been terminated – It is evident that respondents approached the Hon’ble High Court of Delhi in Writ Petition (C) 44/2014 against impugned order of Tribunal – Since the Hon’ble Delhi High Court has stayed direction given by this Court and is now seized of matter, it would not be appropriate for this Court to either issue the same or similar directions once again in present TA also, or to decide case with surgical precision on basis of above discussion on merits also – It is clear that once judgment of the Hon’ble Delhi High Court in Writ Petition (C) No. 44/2014 is known, result of that judgment would apply to present applicants also – All O.A. are disposed of.

MACT – Deduction of Family Pension

2015 STPL(Web) 1584 RAJASTHAN (RAJ) - Compensation enhanced

MUNNI DEVI & ORS. Vs. GOVIND RAJPUT & ANR.

Motor Vehicles Act, 1988 – Sections 166, 168 and 173 – MACT – Deduction of Family Pension – Determination of compensation – LIC amount, family pension not a ‘pecuniary advantage’ – Compensation enhanced – Submission of claimant/appellants is that deduction of family pension while calculating amount of award is contrary to well established principles of law for determination of compensation under the MV Act – It is shocking that Tribunal has deducted l/3rd personal expenses of deceased even from family pension which is not to be excluded from salary of deceased while calculating compensation on basis of multiplier, as detailed out – Case is not of a pension to injured but same is of family pension payable to legal representatives of deceased – Pension is not a bounty but the same is fruit of services rendered by an employee during period of service and said principle is also applicable to family members of deceased employee – Compensation of Rs. 8,03,220 awarded by Tribunal is enhanced to Rs. 12,28,784 and enhanced amount of compensation i.e. Rs. 4,25,564 with interest @ 6% per annum shall be paid to claimants – Miscellaneous appeal partly allowed.

Motor Vehicle – Permit

2015 STPL(Web) 1583 CALCUTTA (CAL) - Writ dismissed

RAM ASHRE HARIJAN Vs. STATE OF WEST BENGAL & ORS.

Motor Vehicles Act, 1988 – Section 71(3) – Constitution of India, 1950 – Article 19(l)(g) – Motor Vehicle – Permit – Grant of permanent Contract Carriage Permit – Policy decision of State cannot be reviewed in judicial exercise unless it is ultra virus Constitution – It was no more open to challenge – State Government by exercising its executive power issued notification imposing restriction – Held that main plank of petitioner’s argument that as Section 74(3)(a) of the Act has not been resorted to notification was bad, is plainly not sustainable as that provision has no application to facts of the case – Single Judge while disposing of first writ petition had clearly indicated that notification impugned in present writ petition had given rise to a fresh cause of action – For a fresh cause of action if a writ petition is filed question of res judicata never arises as before this Court between parties in earlier writ petition was on a totally different factual basis – Government has power to take a policy to regulate operation of stage carriages in State and might put certain restrictions which cannot be construed to take away right guaranteed under Article 19(l)(g) of the Constitution of India – Entire statutory process for grant of permit in itself was regulatory – Therefore, it could not be assailed even if it was issued in exercise of administrative function – Thus challenge to said notification is not available to petitioner – Validity of notification having been upheld by Division Bench of this Court petitioner cannot any further assail the same either on ground of lack of competence or being against policy of liberalization – Writ Petition dismissed.

Service Law – Regularization

2015 STPL(Web) 1582 HP (HP) - Entitled for higher pay scale with all consequential benefits

BHOLA NATH BHARDWAJ SON OF SHRI RAM RAKHA BHARDWAJ Vs. H.P. GENERAL INDUSTRIES CORPORATION LTD. & ANR.

Constitution of India, 1950 – Articles 226, 13(2) and 14 – Service Law – Regularization with all Consequential Benefits – No estoppel against fundamental right – Completed 12 years service without any disciplinary action – Entitled for higher pay scale with all consequential benefits – Employee is legally entitled for equal pay for equal work – Regularization of services is based on promotional rules & merits as per recommendation of Departmental Promotional Committee – Held that petitioner will be entitled to pay scale of Chargeman (Boiler) w.e.f. 1.1.1996 along with interest at rate of 9% per annum till petitioner worked as Chargeman (Boiler) subject to adjustment of salary already paid qua post of Electrician with all consequential monetary benefits – All other reliefs claimed by petitioner decline and merged in points determined by Court – Civil Writ Petition disposed of.

Evidence – Prosecutrix was Dumb Witness

2015 STPL(Web) 1581 HP (HP)(DB) - Evidence by way of gestures and signs as per Section 119 of Indian Evidence Act

STATE OF HIMACHAL PRADESH Vs. KHUSHI RAM

Indian Evidence Act, 1872 – Sections 118 and 119 – Indian Penal Code, 1860 – Sections 376 and 452 – Evidence – Prosecutrix was Dumb Witness – Deaf and dumb persons are competent witness -Trial Court committed procedural illegality by way of not recording statement of prosecutrix under Section 119 – Acquittal is set aside – Trial Court did not examine prosecutrix and held that inquiry is essential whether prosecutrix is competent witness in view of her disability certificate placed on record – Directed prosecution to get prosecutrix medically examined through ENT expert – Also not assigned any reasons for disbelieving Committal Judicial Magistrate who had recorded testimony of prosecutrix through interpreter by way of signs and gestures – Held that a person who is partially deaf to extent of 80% in her left ear and 45% in her right ear can communicate incident of rape by way of gestures and signs through interpreter to Court – Even deaf and dumb person is a competent witness – It is proved on record that prosecutrix was competent to communicate by way of gestures and signs through interpreter – Trial Court has committed grave miscarriage of justice and has committed procedural illegality by way of not recording statement of prosecutrix under Section 119 of Indian Evidence Act – Matter is remanded back for recording of statement of prosecutrix – Appeal allowed.

Service Law – Civil Services – Denial of Home Cadre

2015 STPL(Web) 1580 DELHI (DEL)(DB) - No right to claim a particular cadre

UNION OF INDIA Vs. KURMA RAO M. & ORS.

Service Law – Civil Services – Denial of Home Cadre – Validity – Depending on actual outsider vacancy in cadre at any point of time, ratio might be much less than 1:2: insider: outsider – There is nothing to suggest that Tribunal applied its mind to examine category or OBC category vacancies only, and one of them would not be SC category vacancy – Furthermore, procedural steps elaborates adoption of an elaborate methodology to determine actual insider vacancies i.e. preparation of not less than three lists and final determination – Reasoning of Tribunal nowhere indicates that these steps were not followed nor has it independently indicated how it concluded that two insider vacancies did exist – Held, no candidate including those who are deemed meritorious can have right to insist that they ought to be allotted particular cadre – Impugned order quashing cadre allocation of respondent/applicant and directing reconsideration of entire issue can not be sustained and, accordingly, set aside – Petition allowed.

Civil Procedure – First Appeal

2015 STPL(Web) 1579 DELHI (DEL) - Direction to decide on merits

BHAGWATI PRASAD SHARMA Vs. PT. RAM SARUP SHARMA (DECEASED)

Civil Procedure Code, 1908, S.96(4) – First Appeal – Dismissal of first appeal on ground that no appeal lies inasmuch as sub-s.(4) of s.96 states that appeal will lie but only on a question of law – Validity – Held, if question of law does not arise, then first Appellate Court after discussing merits of case and holding that as per judgment of Trial Court no substantial question of law arises, then possibly appeal may be dismissed on merits, but not that appeal does not lie u/s.96(4) CPC – First Appellate Court directed to decide appeal on merits in accordance with law – Appeal allowed.

Rape – DNA Test

2015 STPL(Web) 1578 RAJASTHAN (RAJ) - DNA test mandatory in nature

RICHPAL KHARRA Vs. STATE

Criminal Procedure Code, 1973—Section 53A – Rape – DNA Test – DNA test of rape accused – Complainant who alleged rape on herself latter on informed the police that she is not interested in pursuing the matter and no offence of rape had taken place with her. Police filed negative report. Held: Section 53 A Cr.P.C. is mandatory in nature. Accused directed to provide DNA sample which shall be sent by the Investigating Officer to the FSL. Further Police is directed to immediately bring the FSL report to the concerned Court so that the concerned Court may proceed further, if necessary.

Robbery – Conviction Set aside

2015 STPL(Web) 1577 DELHI (DEL) - Acquittal

MOHD. ADIL Vs. STATE GOVT. OF NCT OF DELHI

Indian Penal Code, 1860 – Sections 392 and 397- Arms Act, 1959 – Section 25 – Robbery – Conviction Set aside – Robbery of mobile phone at knife point – Acquittal of co accused – Petitioner apprehended on spot but nothing recovered from him – Other accused run away on motorcycle – As per complainant petitioner did not robe him – Prosecution witnesses have given divergent statements regarding recovery of knife – It is unbelievable that after alarm being raised, appellant would not hand over knife to his associate or he himself would not sit on motorcycle to escape from spot – original memos/exhibits are not on record of trial court – Prosecution witnesses have not presented true facts- Conviction set aside.

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