Employee Insurance – Applicability

2014 STPL(Web) 705 SC (SC)(DB) - Judgment Date: 28-10-2014 - ESI applicable on club kitchen

DELHI GYMKHANA CLUB LTD. Vs. EMPLOYEES STATE INSURANCE CORPN.

In the light of the various decisions and the view taken by this Court in G.L. Hotels case, the High Court has rightly held that the preparation of food items in the kitchen of the appellant-club amounts to “manufacturing process” and that the employees are covered under the purview of the ESI Act. Considering the activities of the appellant-club and that the kitchen catering forms an integral part of the appellant- club, the High Court rightly held that the appellant-club falls within the purview of the ESI Act and we do not find any infirmity in the order passed by the High Court.

Employees Insurance – Applicability of Law

2014 STPL(Web) 704 SC (SC)(DB) - Judgment Date: 28-10-2014 - Non examination of important questions. Remand back to High Court

NEW MANGALORE PORT LISTED WORKERS MANAGING COMMITTEE Vs. REGIONAL DIRECTOR, ESI CORPORATION

Whether or not New Mangalore Port Listed Workers Managing Committee is an integral part of New Mangalore Port Trust (NMPT) and whether State Government is the “appropriate government” to extend the applicability of provisions of Employees State Insurance Act, 1948 (ESI Act) to the New Mangalore Port Listed Workers Managing Committee are the points falling for consideration in this appeal. …. By a perusal of the judgment of the High Court, it appears that the High Court has not examined the testimony of AW-1, Secretary of New Mangalore Port Listed Workers Committee and AW-2, Deputy Secretary of NMPT and their evidence that prior to 15.3.1990 the workers were under the administrative control of the NMPT. The questions viz.: …. whether the workers of the Managing Committee were registered as Stevedores engaged in loading and unloading work of NMPT and whether they were under the administrative control of NMPT…. whether the services rendered by the workers of the Managing Committee was an integral part of NMPT and if that be so, whether the “appropriate government” is the Central Government and…. whether the workers of the Managing Committee were extended medical facilities and other benefits on par with other employees of the NMPT and other relevant questions remain unanswered….. the matter is remitted back to the High Court for consideration of the matter afresh in the light of the above discussion and in accordance with law.

Maintenance to Wife – Allowed

2014 STPL(Web) 703 SC (SC)(DB) - Judgment Date: 28-10-2014 - High Court order not granting maintenance to wife set aside

SUNITA KACHWAHA & ORS. Vs. ANIL KACHWAHA

The High Court has set aside the award of maintenance to the wife on the ground that the separate stay of the wife due to alleged dowry torture is not justified and that she has left the matrimonial house without any justifiable ground. …. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. …. The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. …. the High Court ought not to have set aside the award of maintenance.

MACT – Recovery rights to insurer

2014 STPL(Web) 702 SC (SC)(DB) - Judgment Date: 28-10-2014 - LMV driving licence without endorsement for goods vehicle. No recovery rights to insurer

KULWANT SINGH & ORS. Vs. ORIENTAL INSURANCE COMPANY LTD.

whether the Insurance Company is entitled to recovery rights on the ground of breach of conditions of insurance policy when the driver possesses valid driving licence for driving light vehicle but fails to obtain endorsement for driving goods vehicle. …. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive ‘light motor vehicle’ could drive ‘light motor vehicle’ used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. …. we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.

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Injunction – Case not made out

2014 STPL(Web) 1696 P&H (P&H)(DB) - Injunction set aside

ADARSH P.JAUHAR Vs. GULSHAN JAIN & ORS.

Specific Relief Act, 1963 – Section 39 – Injunction – Case not made out – Appellant /defendant No. 2 was not even a party to lease deed – Mandatory Injunction not maintainable – Prayer made in suit for mandatory injunction could not be said to be a collateral purpose by any stretch of imagination, particularly against defendant No. 2 who was not even a party to lease deed & had no obligation towards plaintiff – Therefore, no injunction could have been granted until and unless defendant No.2 was alleged and proved to be licensee – Once tenancy of plaintiff/respondent on account of said lease deed which was the sole basis for filing suit, is terminated and plaintiff/respondent is evicted from suit property, no cause of action survives in his favour – Held that Courts below have committed serious error of law, while going beyond pleadings and evidence on record, as well as illegally ignoring relevant provisions of law – Impugned judgments and decrees are suffering from patent illegality, cannot be sustained and the same are set aside – Suit of plaintiff/respondent is dismissed – Regular Second Appeal allowed.

Evidence – Unregistered Lease Deed

2014 STPL(Web) 1696 P&H (P&H))(DB) - Non registration of lease which required Compulsory registration, not admissible in evidence

ADARSH P.JAUHAR Vs. GULSHAN JAIN & ORS.

Registration Act, 1908 – Section 17 – Stamp Act, 1899 – Section 35 – Transfer of Property Act, 1882 – Section 107 – Evidence – Unregistered Lease Deed – Payment of eleven times penalty under Stamp Act – Lease Deed not admissible in evidence – Challenged – Lease deed between defendants/respondents No. 3 to 5 being owners and landlords on one hand and plaintiff as well as defendant No.1 being co-lessees on other hand, was unregistered one – Lease deed signed by both parties required compulsory registration – If any document, despite being compulsorily registrable, was not a registered document, the same would not be admissible in evidence – So as to overcome serious and legal difficulty, plaintiff/respondent paid eleven times penalty on said lease deed in compliance of order, whereby plaintiff was directed to pay stamp duty and penalty – Held that merely by paying stamp duty and penalty under the Act, basic defect of non-registration of lease deed would not stand cured – Thus in spite of paying stamp duty and penalty under Section 35 of the Stamp Act, requirement of law under Section 17 of the Registration Act and Section 107 of the TP Act would not automatically stand complied with – Thus, even plaintiff had paid stamp duty and penalty, said lease deed not admissible in evidence, despite being an unregistered document – Decree of mandatory injunction not granted.

Burden of proof on issue of limitation

2014 STPL(Web) 1695 RAJASTHAN (RAJ)(DB) - Burden of proof that suit is within limitation is on plaintiff

CHATAR SINGH Vs. ADDITIONAL DISTRICT JUDGE (F.T.) NO.L, JAIPUR CITY, JAIPUR & ANR.

Civil Procedure Code, 1908 – Order XIV Rule 1 and 5 – Limitation Act, 1963 – Section 3 – Civil Burden of proof on issue of limitation – Placing burden of proving the same upon defendant-petitioner – Improperly framed – S.3 of the Limitation Act makes it obligatory on Court to dismiss a suit barred by limitation, although limitation has not been set up as a defence, indicating thereby that it is duty of a plaintiff to establish, at any rate prima facie, that suit is within time – It is obligation of plaintiff to satisfy the court that his action is not barred by lapse of time – Plaint must contain necessary averments, which, when taken in totality, amply demonstrates that suit is within limitation – A mere general statement will not suffice mandatory requirements – Thus, Trial Court has committed an error in framing additional issue No.5, additional issue on limitation – Impugned order is set aside – Trial Court is directed to frame additional issue as referred in Para 18 and proceed further in accordance with law – Writ Petition partly allowed.

Maintenance – Enhanced

2014 STPL(Web) 1694 AP (AP)(DB) - Maintenance enhanced

P.ILLESH YADAV Vs. P.SUVARNA

Hindu Adoption and Maintenance Act, 1956 – Section 18 – Criminal Procedure Code, 1973 – Section 125 – Maintenance – Enhanced – Maintenance granted is not adequate – Enhancement of maintenance – It is not in dispute that appellant/husband is employed in B.S.N.L and drawing fairly good amount as salary – Respondent/wife has no income whatsoever – Appellant/husband is under obligation to maintain her – By any standard, Rs.1500/ – per month is insufficient for an individual to lead life with basic necessities – Hence, enhanced maintenance from Rs.1500/- per month to Rs.4000/- per month – A.S.No.3433 of 2003 is dismissed and F.C.A.Nos.179 of 2008 and 306 of 2012 are allowed – Appeals disposed of.

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Dishonour of Cheque – Vicarious liability

2014 STPL(Web) 700 SC (SC)(DB) - Judgment Date: 17-10-2014 - Quashing of complaint against one director upheld for others remand back

GUNMALA SALES PRIVATE LTD. Vs. ANU MEHTA & ORS.

In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed.

Abetment of Suicide – Conviction set aside

2014 STPL(Web) 695 SC (SC)(DB) - Judgment Date: 17-10-2014 - Acquittal

KULDEEP KAUR Vs. STATE OF UTTARAKHAND

PW1, father of the deceased, in his cross examination stated that no dowry was demanded by the accused persons from the day of alliance till solemnization of marriage. Whatever stridhan was given was as per the custom and as per his will in the form of gift to his daughter….. Witness himself stated that only God knows why her daughter committed suicide without any reason. This witness has stated that it is true to say that neither the accused persons abetted his daughter to commit suicide nor they harassed her. …. In our considered opinion, the evidence adduced as against the appellant does not establish the case under Section 306 of the Code. On the basis of evidence of the prosecution witnesses, conviction of the appellant only cannot be sustained. Having regard to the fact of the case and the evidence of the prosecution witnesses, the trial court acquitted all the accused persons except the present appellant and the said judgment was affirmed by the High Court. We do not find any strong reason to agree with the judgment of conviction passed by the trial court and affirmed by the High Court as against the appellant.

Quashing of Summoning – additional accused – Quash set aside

2014 STPL(Web) 687 SC (SC)(DB) - Judgment Date: 14-10-2014 - Quashing of summoning set aside

R.N.AGARWAL Vs. R.C. BANSAL AND OTHERS

The order passed by the Special Judge would show that while issuing summons against the respondents the Court has considered in detail the material brought on record during investigation….. Prima facie, therefore, the impugned order passed by the High Court quashing issuance of summons by the Special Judge against the respondents is erroneous in law and cannot be sustained. However, at this stage it was not necessary for the Special Judge to issue directions to CBI to get a case registered against the guilty officers who have investigated the case.

Dowry Death – Conviction by High Court upheld

2014 STPL(Web) 686 SC (SC)(DB) - Judgment Date: 14-10-2014 - Conviction

A.K. DEVAIAH Vs. STATE OF KARNATAKA

Admittedly, the marriage was solemnized on 16.4.1989 and the incident took place on 16.3.1990 i.e. within a period of eleven months only. From the evidence it reveals that the altercation between the appellant and the deceased started three months before the incident when there was no indication of the deceased becoming pregnant after marriage. According to the prosecution, before the marriage of the deceased with the appellant, negotiations were held with regard to the demand of dowry in the form of cash as well as gold and silver ornaments. It further reveals that part of the dowry amount was given to the appellant before marriage and further amount was given at the time of marriage. The prosecution further led evidence that the appellant was in the habit of consuming liquor and further the deceased had been subjected to physical and mental cruelty over certain issues including demand of balance dowry. The deceased being not in a position to bear more torture and cruelty pertaining to demand of dowry committed suicide by setting herself on fire. The sister, brother and sister’s husband of the deceased along with other witnesses had been examined as PWs 1, 2 and 3, who have consistently deposed about the demand and acceptance of dowry and also about the deceased being subjected to mental and physical cruelty by the appellant in their house.

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MACT – Compensation enhanced

2014 STPL(Web) 1840 MP (MP)(DB) - Compensation Enhanced

MANGUBAI MOHAN BHIL & OTHERS Vs. JAHID HUSSAIN & ANOTHER

Motor Vehicles Act, 1988 – Sections 166 and 168 – MACT – Compensation enhanced – Assessing income of deceased was on lower side – Held that it is a death case which took place in year 2010 therefore income appears to be on lower side which ought to have been taken @ Rs. 4,000/- per month – Considering age of deceased which was found in postmortem report around 40 years, multiplier of 15 ought to have been applied – Thus, appellants are entitled for a sum of Rs. 6,00,000/- instead of Rs. 3,66,000/- Enhanced amount of Rs. 2,34,000/- shall carry interest @ 8% per annum – Appeal allowed.

Employee Compensation – Commencement of risk coverage by insurer

2014 STPL(Web) 1839 CHHATTISGARH (CHH)(DB) - Issuance of policy becomes effective when premium is received.

JASVINDAR KAUR AND OTHERS Vs. SARDAR NISHAN SINGH AND ANOTHER

Employee’s Compensation Act, 1923 – Section 4A(3)(d) – Motor Vehicles Act, 1988 – Sections 166, 147 and 149 – Insurance Act, 1938 – Sections 64VB and 30 – Employee Compensation – Commencement of risk coverage by insurer – Issuance of insurance coverage policy immediately commencing period from time of receiving premium amount – Fixing subsequent time or date as starting time for covering policy coverage, not proper – Insurance Company is liable to pay compensation awarded by Commissioner – Admittedly and undisputedly, premium was collected by Insurance Company on 4-7-2005 at 6.00 p.m., and it has been deposited vide scroll No. 1007 dated 5-7-2005 and no reason has been assigned as to why period of coverage was made effective from 6-7-2005 – Respondent/insurer has no discretion to arbitrarily postpone issuance of policy to a later date/time as it is mandate of law that every vehicle can ply in a public place only when covered with valid insurance policy covering risk of third party – Non-issuance of said policy covering risk of vehicle after receipt of premium is bad in law – Impugned award in relation to exonerate Insurance Company from its liability is set-aside – Appeal allowed.

MACT – Compensation enhanced

2014 STPL(Web) 1838 ORISSA (ORI)(DB) - Compensation Enhanced

DAMODAR SWAIN Vs. RAM KISHORE BAJPAYEE & ANOTHER

Motor Vehicles Act, 1988 – Sections 166 and 168 – MACT – Compensation enhanced – Award is grossly inadequate – Wrongly assessed income of deceased – It is worth mentioning that in reported case deceased had died on 12-4-2004 whereas deceased in present case died in the year 1994 – Therefore, standard adopted in Laxmi Devi’s case (AIR 2008 SC 1858) cannot be made applicable to case in hand – Held that monthly income as adopted by Tribunal is quite reasonable and, therefore, it is accepted – Undisputedly, deceased was aged 24 years and a bachelor – Allowing 50% deduction for personal and living expenses, monthly loss of dependency comes down to Rs. 1,350/-and yearly loss of dependency comes to Rs. 16,200/- Tribunal has adopted 13 as multiplier determined on basis of deceased’s age – Therefore, appropriate multiplier, as laid down in Sarla Verma’s case would be 18 – Total loss of dependency is worked out at Rs. 2,91,600/- Held that interest at rate of 6% as awarded by Tribunal not being grossly inadequate, needs no enhancement – Impugned award is modified to extent that instead of a sum of Rs. 1,44,900/-, claimant is entitled to get Rs. 2,96,100/- as compensation – Rest part of impugned award remains unaltered – Appeal partly allowed.

MACT – Review

2014 STPL(Web) 1837 RAJASTHAN (RAJ)(DB) - MACT tribunal has no power to review its order

KAPIL LODHA Vs. JUDGE, MACT, JAIPUR

Motor Vehicles Act, 1988 – Section 169 – Rajasthan Motor Vehicles Rules, 1990 – Rules 10.27 and 10.28 – Civil Procedure Code, 1908 – Section 114 and Order XL VII, Rule 1 – MACT – Review – Tribunal has no power to review its order – Application was declined by Tribunal – Power of review has not been included in the Rules of 1990 – Motor Accident Claims Tribunal is not having power to review its judgment/order/ award and if, that is so, they cannot pass any order contrary to directions in award – They can, however, correct typographical and error in calculation as it does not amount to review.

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Maintenance to Wife – Allowed

2014 STPL(Web) 703 SC (SC)(DB) - Judgment Date: 28-10-2014 - High Court order not granting maintenance to wife set aside

SUNITA KACHWAHA & ORS. Vs. ANIL KACHWAHA

The High Court has set aside the award of maintenance to the wife on the ground that the separate stay of the wife due to alleged dowry torture is not justified and that she has left the matrimonial house without any justifiable ground. …. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. …. The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. …. the High Court ought not to have set aside the award of maintenance.

Maintenance – Enhanced

2014 STPL(Web) 1694 AP (AP)(DB) - Maintenance enhanced

P.ILLESH YADAV Vs. P.SUVARNA

Hindu Adoption and Maintenance Act, 1956 – Section 18 – Criminal Procedure Code, 1973 – Section 125 – Maintenance – Enhanced – Maintenance granted is not adequate – Enhancement of maintenance – It is not in dispute that appellant/husband is employed in B.S.N.L and drawing fairly good amount as salary – Respondent/wife has no income whatsoever – Appellant/husband is under obligation to maintain her – By any standard, Rs.1500/ – per month is insufficient for an individual to lead life with basic necessities – Hence, enhanced maintenance from Rs.1500/- per month to Rs.4000/- per month – A.S.No.3433 of 2003 is dismissed and F.C.A.Nos.179 of 2008 and 306 of 2012 are allowed – Appeals disposed of.

Divorce – Cruelty and Desertion

2014 STPL(Web) 1694 AP (AP)(DB) - Divorce set aside

P.ILLESH YADAV Vs. P.SUVARNA

Hindu Marriage Act, 1955 – Section 13(l)(ib) – Divorce – Cruelty and Desertion – Challenged – Found that ground of cruelty is not established – Though appellant/husband made an attempt to deny allegation pertaining to his relationship with another woman, he is not successful in this regard – Appellant did not dispute that person named in birth certificate of a child as father of said child is himself – When appellant is leading life with another woman, he just cannot expect respondent to join him – It cannot be said that respondent deserted appellant – On other hand, it is appellant, who created an unfavourable atmosphere for respondent to leave and even when latter expressed her willingness to live with him, appellant did not show any inclination – Impugned finding of Trial Court to that effect cannot be sustained in law – Decree of divorce is set aside.

Family Settlement – Oral settlement recorded in unregistered instrument

2014 STPL(Web) 1686 P&H (P&H)(DB) - Oral settlement recorded in unregistered instrument not valid

SUKHDEVI Vs. RAM PIARI

Family Settlement – Oral settlement recorded in unregistered instrument – Compromise offends registration, stamp and contract laws – In plaint filed by mother that gave rise to a compromise decree, she was seeking for a 1/2 share – It was 1/4th share each which daughters obtained in 551 of 1976 that was again sought to be taken back by mother through a transfer made in alleged family settlement – There could have been no valid oral settlement or otherwise that can extinguish plaintiff 1/4th share which she would inherit through her father and whose right was recognized by her father during his lifetime – Plaintiff could not have transferred right to property by an oral admission in favour of mother – A decree that purported to record such a fact also cannot be valid to take away her interest in property.

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Redemption of Mortgage – Mortgagees tenant

2014 STPL(Web) 680 SC (SC)(DB) - Mortgagee tenants are not Mortgager tenants

DR. THAKAR SINGH (D) BY LRS.& ANR. Vs. SH. MULA SINGH (D) THR. LR. & ORS.

It held on a reading of a clause in the first mortgage deed that since the mortgagors would be entitled to future rent after redemption, it is clear that the mortgagors recognized all tenants created by the mortgagees during the subsistence of the mortgage. Issue No.4 was answered accordingly and the suit for vacant possession of the suit property from defendants was held not to be maintainable in law. …. It is clear that taking of possession from the mortgagees and his tenants is completely antithetical to recognizing the mortgagees’ tenants as the mortgagors’ tenants. If the clause is to be read in the manner that the High Court has read it, the mortgagors would not be able to get back possession on redemption which would in fact be a serious interference with their right to redeem the property inasmuch as the mortgagors would have to evict such tenants after making out a ground for eviction under the Rent Act. …. It has already been seen that a mortgagee continuing in possession after redemption as tenant of the mortgagor is regarded as a clog on redemption. The position is not different if the mortgagee’s tenants continue in possession after redemption. This would necessarily have to be disregarded as a clog on redemption as the right to redeem would in substance be rendered illusory.

Eviction – Leave to defend

2014 STPL(Web) 661 SC (SC)(DB) - Eviction - Leave to defend granted

SHANTI DEVI Vs. RAJESH KUMAR JAIN & ANR.

Learned counsel for respondents contended that the landlords needed the property in question to expand their business, as the space currently available to them is insufficient. It was submitted that the appellant-tenant owned another property, along with her husband in the same locality, where she could shift her business. The appellant-tenant denied the issues raised by the respondents-landlords with respect to having alternative accommodations. …. we are of the view, that the appellant has raised a triable issue, in the sense, that there is a fair dispute to be tried in the eviction petition and the appellant be granted leave to defend. However, leave to defend could be granted to the appellant only conditionally. When the revision petition was pending before the High Court, the appellant agreed to pay to the landlords rent at the rate of Rs.3,000/- per month and the same could be continued.

Eviction – NRI Landlord

2014 STPL(Web) 559 SC Eviction (SC)(DB) - Eviction allowed

KAMALJIT SINGH Vs. SARABJIT SINGH

An eviction petition under Section 13-B of the East Punjab Urban Land Restriction Act, 1949 was filed by the appellant on the ground that as a Non Resident Indian in need of the shop for his own use, he was entitled to have the same vacated from the respondent-tenant….. The inevitable inference flowing from the above proposition would be that (viz-a-viz the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has established his ownership of the premises for a period of five years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949….. The upshot of the above discussion is that the Courts below fell in manifest error in holding that the appellant-landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the Courts below and in decreeing the eviction petition.

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Employee Insurance – Applicability

2014 STPL(Web) 705 SC (SC)(DB) - Judgment Date: 28-10-2014 - ESI applicable on club kitchen

DELHI GYMKHANA CLUB LTD. Vs. EMPLOYEES STATE INSURANCE CORPN.

In the light of the various decisions and the view taken by this Court in G.L. Hotels case, the High Court has rightly held that the preparation of food items in the kitchen of the appellant-club amounts to “manufacturing process” and that the employees are covered under the purview of the ESI Act. Considering the activities of the appellant-club and that the kitchen catering forms an integral part of the appellant- club, the High Court rightly held that the appellant-club falls within the purview of the ESI Act and we do not find any infirmity in the order passed by the High Court.

Employees Insurance – Applicability of Law

2014 STPL(Web) 704 SC (SC)(DB) - Judgment Date: 28-10-2014 - Non examination of important questions. Remand back to High Court

NEW MANGALORE PORT LISTED WORKERS MANAGING COMMITTEE Vs. REGIONAL DIRECTOR, ESI CORPORATION

Whether or not New Mangalore Port Listed Workers Managing Committee is an integral part of New Mangalore Port Trust (NMPT) and whether State Government is the “appropriate government” to extend the applicability of provisions of Employees State Insurance Act, 1948 (ESI Act) to the New Mangalore Port Listed Workers Managing Committee are the points falling for consideration in this appeal. …. By a perusal of the judgment of the High Court, it appears that the High Court has not examined the testimony of AW-1, Secretary of New Mangalore Port Listed Workers Committee and AW-2, Deputy Secretary of NMPT and their evidence that prior to 15.3.1990 the workers were under the administrative control of the NMPT. The questions viz.: …. whether the workers of the Managing Committee were registered as Stevedores engaged in loading and unloading work of NMPT and whether they were under the administrative control of NMPT…. whether the services rendered by the workers of the Managing Committee was an integral part of NMPT and if that be so, whether the “appropriate government” is the Central Government and…. whether the workers of the Managing Committee were extended medical facilities and other benefits on par with other employees of the NMPT and other relevant questions remain unanswered….. the matter is remitted back to the High Court for consideration of the matter afresh in the light of the above discussion and in accordance with law.

Service Law – Retiral Benefits

2014 STPL(Web) 1680 P&H (P&H)(DB) - Retiral Benefits allowed with interest

DAYA SINGH Vs. STATE OF HARYANA & ANR.

Pension Rules – Rule 2.2.(b) – Indian Penal Code, 1860 – Sections 406, 408, 420, 467, 468, 471 & 120-B – Prevention of Corruption Act, 1988 – Section 13(1)(d) – Service Law – Retiral Benefits – Cannot be stopped or withheld on basis of registration of FIR – Writ Petition – Simply on basis of registration of FIR, retiral benefits cannot be stopped or withheld as it has been held in Manohar Singh Vs. Punjab State Electricity Board and others 2006(2) RSJ 316 – Continuation of criminal case cannot deprive petitioner of death-cum-retirement gratuity – Thereafter, he served Board for four years till he retired on superannuation on 31.05.2003 – Petitioner is entitled to receive entire retiral benefits along with interest on delayed payment after expiry of two months from date of retirement at rate of 9% per annum till date of payment – Writ Petition allowed.

Service Law – Similarly situated persons

2014 STPL(Web) 697 SC (SC)(DB) - Judgment Date: 17-10-2014 - Delay and laches takes away the right of similarly situated persons

STATE OF UTTAR PRADESH & ORS. Vs. ARVIND KUMAR SRIVASTAVA & ORS.

High Court has given the respondents herein benefit of the order passed by the Court in earlier round of litigation filed by similarly situated persons. …. Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India….. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence….. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.

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Dishonour of Cheque – Vicarious liability

2014 STPL(Web) 700 SC (SC)(DB) - Judgment Date: 17-10-2014 - Quashing of complaint against one director upheld for others remand back

GUNMALA SALES PRIVATE LTD. Vs. ANU MEHTA & ORS.

In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed.

Dishonour of cheque – Complainant

2014 STPL(Web) 1624 BOMBAY (BOM)(DB) - Acquittal

HINDUSTAN COMPUTERS, MALEGAON Vs. DART COMPUTERS LTD.

Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code, 1973 – Sections 258 and 353 – Dishonour of cheque – Complainant – Cheque issued in favor of Proprietorship Firm – Complainant was not owner or proprietor of firm – Doubt on genuineness of power of attorney – Criminal Appeal against dismissal of complaint and acquittal of accused – Accused had entered into agreement with complainant on a bona fide belief that he happens to be proprietor of said firm – Cheques in question were issued in the name of firm – Complainant was a power of attorney holder, there was no reason for him to prove the same and file complaint in his own name or admit before Court that he is proprietor of firm – Therefore, complainant cannot be held as a holder in due course – Impugned findings are in consonance with oral and documentary evidence on record and do not call for any interference – Appeals dismissed.

Dishonour of Cheque – Premature Complaint

2014 STPL(Web) 621 SC (SC)(FB) - Premature complaint of dishonour of cheque not maintainable

YOGENDRA PRATAP SINGH Vs. SAVITRI PANDEY & ANR.

The Court formulated the following two questions for consideration: (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? And, (ii) If answer to question No.1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired?…. We approve the decision of this Court in Sarav Investment & Financial Consultancy2 and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. …. As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly.

Dishonour of Cheque – Complaint by Power of attorney holder

2014 STPL(Web) 614 SC (SC)(DB) - Dishonour of cheque complaint by Power of attorney holder maintainable

VINITA S. RAO Vs. ESSEN CORPORATE SERVICES PVT. LTD. & ANR.

Karnataka High Court overturned the concurrent judgments of the courts below and acquitted the respondents only on the ground that the complaint had been presented by the appellant’s husband as her power of attorney holder but the power of attorney was not produced and that in strict compliance with Section 200 of the Code, the appellant must be examined before cognizance can be taken of the complaint, which was not done. …. Hence, while holding in favour of the appellant that the complaint can be filed by a power of attorney holder and on that ground complaint cannot be held not maintainable and that the power of attorney was very much on record, we remand the matter to the High Court with a request that the High Court should hear both sides and decide whether the cheques in question were issued as a security or for the purpose of repayment of legally recoverable debt.

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Medical Negligence – Case not made out

2014 STPL(Web) 1795 NC (NC)(DB) - Complaint dismissed

SUCHETA SANYAL Vs. DR. MEGHNAD BHOWMIK & ANR.

Consumer Protection Act, 1986 – Sections 2(l)(g), 21(a)(i) – Medical Negligence – Case not made out – Eye surgery – Loss of vision of right eye – Evidence discussed – Medical literature discussed – Related judgments quoted – Held: OP is a qualified doctor, having experience and skills in his specialty, and he used his best professional judgment and due care in treatment of patient, during post-operative period. we are of the considered opinion that OP has treated the patient, both, during pre and post-operative period, with due care and caution, as per standards of medical practice. Not any deficiency in the services and negligence. Complaint dismissed without any costs.

Tractor – Manufacturing defect

2014 STPL(Web) 1794 NC (NC)(DB) - Complaint allowed

MAHINDRA & MAHINDRA LTD. & ANR. Vs. RAM LAKHAN

Consumer Protection Act, 1986 – Sections 2(l)(f), 2(l)(g), 21(b) – Tractor – Manufacturing defect – Leakage of mobil oil from silencer from very first day of purchase – Tractor returned on second day with promise of replacement – No replacement but asked charges for repair during warranty period – Complaint allowed – Revision – Held: We are of the opinion that, the OP is liable for deficiency in service, because the OP has not supplied the tractor to the complainant, after repair which was during warranty period, but OP demanded charges for repair – OP directed to hand over the tractor with proper repairs completely with a warranty for one year from the date of delivery. Compensation for crop loss and mental agony to the tune of Rs 50000/- allowed.

Medical Negligence – No case made out

2014 STPL(Web) 1793 NC (NC)(DB) - Complaint dismissed

VASNATHA SAMKUTTY Vs. MARTHOMA MEDICAL MISSION CENTRE & ANR.

Consumer Protection Act, 1986 — Sections 2(l)(g), 21(b) – Medical Negligence – No case made out – Surgery of appendicitis – Condition not improved – Revision against dismissal of complaint by State Commission – Held: Expert witness examined on side of complainant has only supported case of OPs that doctor had done all the best possible treatment and procedure – No negligence proved.

Insurance – Repudiation of claim – Life insurance

2014 STPL(Web) 1792 NC (NC)(DB) - Complaint allowed

ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. & ANR. Vs. RAJSHRI SIMANT SUKALE

Consumer Protection Act, 1986 — Sections 2(l)(g), 2(l)(r), 14(l)(d), 21(b) – Insurance – Repudiation of claim – Life insurance – Death due to cancer – Revision by OP – Held: The complainant did not ask benefit under Critical illness Total and Permanent Disability due to sickness; but she asked benefit towards Death Claim. Hence, the OP could not take benefit of Clause 5 (2) to refund the premium only. The repudiation of death claim by OP was a wrong decision. The OP is liable for such deficiency in service. We agree with the considered order rendered by the State Commission. Revision dismissed.

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