The Supreme Court while adjudicating upon a motor accident claim appeal expressed displeasure over the approach adopted by the High Court in Examination of witnesses. The Supreme Court stated that the role of the High Court was to analyze the material on record and not to find faults in the cross-examination and non-examination of witness. This ratio was laid down in the case of Anita Sharma & Ors. Vs. The New India Assurance Co. Ltd. & Anr., Civil Appeal No. 4010-4011 of 2020.

The brief facts of the case are that there was a car accident that took place due to which the Petitioner suffered multiple injuries and after-sometime he died owing to the injuries he suffered in the accident. The dependents of the Petitioner filed a case against the Respondent who was the ‘owner-cum-driver’ of the car in which the accident took place. The Petitioners alleged that it was the rash and negligent driving of the respondent that caused the accident and demanded a compensation of Rs. 60,94,000/-. The Petitioner made the insurance company i.e. New India Assurance Co. as a party to the case, as the Respondent’s car was insured by the said company. The Respondent refuted all the claims and contended that the accident was caused due to the rash driving of the truck. The tribunal analyzed the evidences and material placed on record and on the basis of the eye witness present in the car who stated that, “Sanjeev Kapoor i.e. the Respondent was driving the car at a very fast speed when it overtook a vehicle and collided head-on against the oncoming truck”. Based on the testimony the tribunal allowed the claim and granted a compensation of Rs 16,08,000/-. The Respondents filed an appeal in the Rajasthan High Court.

The Rajasthan High Court reviewed the evidence and material in the case and set aside the award made by the Tribunal. The High Court observed that the eye-witness had failed to file an FIR with the jurisdictional police and only came and gave a statement when he was called upon by the Claimants. Secondly, the FIR was registered by the owner-cum-driver of the car and if he was rash and negligent in driving why would he do the same. Thirdly, the assertion of the eye-witness had taken the Petitioner to the government hospital was not proved. The insurance company stated that as per the FIR the accident was caused due to the rash driving of the truck whose details could not be recorded by anyone. The High Court on these grounds set aside the award of the Tribunal.

The Supreme Court while hearing the appeal expressed grave displeasure against the respondents acts of not carrying out proper cross examination of the witnesses and stated that, “The failure of the respondents to cross-examine the solitary eyewitness or confront him with their version,   despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross­-examination of a crucial witness.” The Supreme Court also was not happy with the approach adopted by the High Court and was of the opinion that, “One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault   with   non­examination   of   some   best   eye­witnesses,   as   may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.” Hence, the Supreme Court set aside the judgment of the High Court and held that the appellants are entitled to a compensation granted by the tribunal plus 40% addition in the annual income of the deceased towards the future prospects.

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The legislature has carved out two separate categories of lands, one which is includable and other which is outside the purview of ceiling laws. Once such a classification has been made, with there being no challenge to its vires, it is the solemn duty of every authority to give full effect to the same, in both letter and spirit. This judgment was delivered by the three judge bench comprising hon’ble Justice N.V. Ramana, Justice S. Abdul Nazeer and Justice Surya Kant at Supreme Court in the matter of Daulat Singh (D) THR. LRS. v. The State of Rajasthan & Ors. [C.A. No. 5650 of 2010].

The appellant in the present appeal alleged that Daulat Singh (who died during the pendency of the case and now represented by his legal representatives) owned 254.2 Bighas of land. He gifted 127.1 Bighas of land to Narpat Singh (son of Daulat Singh) on 19.12.1963. The appellant was left with 17.25 standard acres of land after gifting 127.1 to his son which was below the prescribed limit under the Ceiling Act.  

A proceeding was initiated under the Ceiling law, the same was dropped by the Court of Deputy Sub-Divisional Officer, Pali, Rajasthan. The Revenue Ceiling Department re-opened the case of the appellant. The court of Additional District Collector, Pali declared that the mutation of the land done in favor of the son of the appellant was invalid as there was no acceptance of the gift. It was declared therein that the appellant was holding 11 standards acres of extra land over ad above the ceiling limit. The collector, therefore, directed the appellant to handover vacant possession of the aforesaid 11 standard acres of extra land to the Tahsildar, Pali. Aggrieved, the appellant preferred a Writ petition under Article 227 of the Constitution of India, 1950 before the High Court. The learned single judge of the High Court allowed the writ petition preferred by the appellant. The court held that the case was beyond the purview of Section 6 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 because the land was transferred by way of gift. It was further held that the aforesaid transfer of land, by the appellant in favor of his son by virtue of a registered gift deed, being bona fide, was valid in the eyes f law. The learned Single Judge, therefore held that there is no surplus land which is available with the appellant which can be resumed.

Thereafter, the respondents preferred an appeal against the above order before the Division Bench, which allowed the appeal holding that the gift deed was invalid as the son of the appellant was unaware about the same. The Division Bench held that the learned Single Judge passed the judgment in ignorance of the provisions of Section 30C and 30D of the Tenancy Act of 1955. Therefore, the Division Bench of the High Court set aside the order passed by the Single Judge Bench for being untenable and upheld the order passed by the Board of Revenue.

Aggrieved, the appellant has preferred the present appeal by way of Special Leave Petition. The hon’ble Supreme Court held that, the decision rendered by the Division Bench of the High Court is liable to be set aside. The transfer of the land being valid under Section 30DD of the Tenancy Act of 1955, the ceiling area of the appellant falls within the ceiling limit as provided under Section 30C. There is no gainsaying that Section 6 of the ceiling act of 1973 also does not advance the case of the state. Firstly, the repeal of Chapter III-B of the Tenancy Act of 1955 through Section 40 of the Ceiling Act of 1973 is not retrospective. Hence, the provisions of the Ceiling Act of 1973 are not attracted in the present case as the case was re-opened and decided under the provisions of the Tenancy Act of 1955. Secondly, Section 6 of the Ceiling Act of 1973 declares that every transfer of land including by way of gift, made on or after 26-09-1970 and before 01-01-1973, shall be deemed to have been made to defeat the provisions of the Ceiling Act of 1973. In the instant case, the gift deed was executed on 19-12-1963, that is much before 26-09-1970. Therefore also, Section 6 of the Ceiling Act of 1973 does not affect the transfer of land by the appellant-donor in favor of the donee-son. Thirdly, there is no finding that the gift deed in the present case was actuated upon any extraneous consideration. Hence, it constituted a bona fide transfer which are exempted from the rigors of Section 6 of the Ceiling Act of 1973. The appeal stands allowed in the aforesaid terms. Pending applications, if any, stand disposed of.

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“If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross-examination, for which opportunity was granted to the respondents once”, this remarkable stand was forwarded by the Honorable SC in the Civil Appeal case of Anita Sharma & Ors. V. The New India Assurance Co. Ltd. & Anr., [Civil Appeal No. 4010-­4011 of 2020], chaired by Hon’ble Justice Mr. Surya Kant and Hon’ble Mr. Justice Aniruddha Bose.

Sandeep Sharma (deceased), was a resident of District Sikar in Rajasthan. He was traveling in a car bearing registration no. UP 65 AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of 25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2) and 2 other occupants. Sanjeev Kapoor, who was also its owner, was driving the car when at about 10:20 PM near village Atroli, a truck coming from the opposite side struck the car as a result of which all the occupants suffered injuries. Sandeep along with all the other injured occupants were immediately talked to the nearest hospital in Ghazipur at around 11:55 PM but was then referred to the institute of medical science and SS. Hospital, BHU Varanasi on 26.03.2009. It appears that   Sandeep kept experiencing one after another medical complication, succumbing to which he eventually died on 10.12.2009.

At the time of death, the deceased was aged 34 years and was an income tax assessee with an EPF (Employees   Provident   Fund) account. He was employed in Mumbai at Kelvin ESS Vee Textiles as a Sales Officer on regular basis. He left behind a widow, two minor children and a mother; all of whom were solely dependent on him.

Sandeep’s dependents filed a claim petition for Rs 60,94,000 on 26.08.2010 alleging inter alia that the reason for his death was the injuries which he suffered in the accident dated 25.03.2009,  which occurred due to the rash and negligent driving of Sanjeev Kapoor who was the owner-cum-driver of the car in which Mr. Sandeep was traveling. Sanjeev along with the insurer of the car (insurance company) was impleaded as party respondents.

Mr. Sanjeev accepting the fact that the death of the occupant Mr. Sandeep was a result of the accident but he believed that the accident which was caused was not due to his rash driving but due to the truck which struck them, he further added that as all of the occupant traveling in the car were severally shook and injured by the truck, none of them were able to note the number of the truck which made a hasty get-away towards Ghazipur.

In reaching its verdict, the Tribunal relied upon the statement of the eye­witness Ritesh Pandey (AW­3), according to whom Sanjeev Kapoor was driving the car at a very fast speed when it overtook a vehicle & collided head­-on   against the oncoming truck.   The Tribunal,   thus,   assigned liability for the accident upon the respondents and partly allowed the   Claim   Petition with compensation of rupees 16,08,000.

Both the insurance company and the appellant­ claimants filed their respective appeals before the HC. Through judgment dated 23.07.2018, the High Court set aside the Tribunal’s award & dismissed the claim petition for the reason that 1^st, the eye-witness had failed to report the accident to the jurisdictional police. The court believed that the claimants might have produced the fake witness to seek compensation. Secondly, the FIR had been lodged by the owner­-cum-driver, Sanjeev Kapoor, who would not have done so had he been at fault or driving rashly.

The original claimant challenges this decision of the HC of Rajasthan, dated 23.07.2018, in the honorable SC along with the prayers which consisted of accepting the tribunal court’s decision and enhancement of the compensation.

After examining all the submissions, arguments, and evidence forwarded by the councils, the Hon’ble SC in this present appeal overruled the decision made by the HC, with the direction that “…the appellants are held entitled to compensation as awarded by the Tribunal, besides 40% addition in the annual income of the deceased towards ‘future prospects’.The appellants are held entitled to interest @ 8.5%, as per the tribunal’s award, on the entire amount of compensation. The Tribunal shall recalculate the compensation within one month and the insurance company shall deposit the same within one month thereafter. No order as to costs.”

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In a recent case, the Punjab and Haryana High Court while adjudicating upon a Petition filed under Section 482 of Criminal Procedure Code was of the opinion that Section 499 of the Indian Penal Code permits only family members or relatives of the deceased against whom imputations have been made to file a complaint of defamation and can claim to be ‘aggrieved persons’. This ratio was held by a single bench of the court in the case of Raj Kumar Saini Vs. Sant Kanwar, CRM-M-30950 of 2019.

The brief facts of the case are that the Respondent/Complainant i.e. Sant Kanwar was a follower of late Chaudhary Matu Ram Hooda, who was an Arya Samajist and freedom fighter. The Complainant claimed that he was an inspiration and guiding light for him and so he was an ardent follower of Hooda. The Complainant further stated that in the newspaper on two dates there were defamatory statements made against late Chaudhary Matu Ram Hooda. On the basis of these statements, the above-said complaint was filed in a court of Judicial Magistrate First Class, Rohtak. Hence, the Petitioner has filed the petition under section 482 of CrPC to quash the complaint.

The High Court sent a summons notice to the Respondent/Complainant, but he did not appear on the date and so the Court first analyzed section 499 of IPC and section 199 of CrPC. It further relied on the judgment of Bhagwan Shree Rajneesh Vs. The State of Bihar & Anr. 1986 SCC OnLine Patna 174, and stated that the person aggrieved was only the person defamed. An exception had been made in the case of a deceased person, but the persons aggrieved in such a case were limited to his family members and near relatives, whose feelings would be hurt by the defamatory statement and none else. The court further stated that “Explanation 1 to Section 499 IPC makes it amply clear that it is only the ‘family members’ or ‘near relatives’ of the deceased person, against whom imputations have been made, who can claim to be ‘persons aggrieved’. Therefore, the respondent-complainant, who is not a ‘family member’ or ‘near relative’ of late Chaudhary Matu Ram Hooda, cannot unilaterally assume unto himself the status of an ‘aggrieved person’ under Section 199 Cr.P.C, whereby he can assert that his feelings were hurt and maintain the subject complaint against the petitioner before the learned Magistrate for the alleged offence of defamation”. Hence, the Court allowed the Petition filed by the Petitioner under Section 2382 of CrPC and quashed the complaint filed against the Petitioner.

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The appellant along with maternal grandmother of Aditya (child of both appellant and respondent) will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya. The Court held in, Smriti Madan Kansagra v.  Perry Kansagra, (CIVIL APPEAL NO. 3559 OF 2020)

The court by majority judgment dated 28.10.2020 held that, the custody of Aditya Vikram Kansagra is handed over by his mother Smriti Madan Kansagra, to the father Perry Kansagra, subject to the directions. Wherein, the respondent was directed to obtain a mirror order from the concerned court in Nairobi to reflect the directions contained in the judgment, within a period of 2 weeks from the date of judgment. Also, Smriti will be at liberty to engage with Aditya on a suitable video-conferencing platform for one hour over the weekends; further, Aditya is at liberty to speak to his mother as and when he desires to do so. Also, Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya, either in New Delhi or Kenya, wherever she likes, after due intimation to Perry. Not only this, Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations. The costs will cover the air fare and expenses for stay in Kenya. However, Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry.

On 30.10.2020, the respondent moved an application in the High Court of Kenya at Nairobi seeking registration of the Judgment and for obtaining ‘Mirror Order’

The counsel for appellant contended that, India and Kenya are not reciprocating countries and, as such, the provisions of the Act will not be applicable. In any case, by virtue of Section 3(3) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP, 43 enacted by the Parliament of Kenya, nothing in the Act will apply to proceedings in connection with “the custody or guardianship of children”.

However, learned Advocate for the respondent has relied upon the provisions of the Judicature Act of Kenya which empower the High Court of Kenya to exercise jurisdiction in accordance with common law principles and doctrine of equity and upon Article 2(5) of the Constitution of Kenya, 2010, which recognises the general rules of international law as forming part of laws of Kenya.

The court was of the view that, “the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order, so long as the High Court of Kenya was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, we accept the submissions made by the respondent. In our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court.”

Conclusively, it was held that, considering the totality of circumstances, including his age at present the appellant was entitled in terms of the directions of the High Court, to have the temporary custody of Aditya throughout the winter and summer vacations. But, that entitlement is now reduced to only 50% of one of the vacations. Also, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Aditya’s school, so that the appellant shall be kept in touch with the developments, and, the appellant be given liberty to meet Aditya on his Birthdays. And thus, the appeal stands disposed off.

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