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Compensation arising out of motor vehicle accident should be proportionate to the income of the deceased : Bombay HC

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TITLE : The Divisional Controller, NEKSRTC v Smt. Sushila

CITATION : First Appeal No. 1180 of 2011

CORAM : Hon’ble justice Smt.Vibha Kankanwadi and Hon’ble Justice Abhay S. Waghwase

DATE:  7th December, 2023

INTRODUCTION :

 The appeal is based on the judgement and award given by the Motor Accident claims Tribunal on 2011

FACTS :

A shrimant died in a car accident while his two wheeler was dashed by a KSRTC bus. It was alleged that the driver of the bus was negligent and rash along with being inexperienced. This incident took place in 2007. The respondent filed written statement and denied all the allegations. It has been contended that the claimants in collusion with police registered a false case against a driver of the respondent. According to the respondent, the deceased himself had lost the control over his vehicle as he was driving it recklessly and wanted to avoid a collision with jeep coming from opposite direction. The motor Accident claims held the respondent liable and ordered the respondent to pay Rs. 21,05,000 with 7.5% interest per annum. The appellant has appealed on the ground that the compensation is not enough considering the face that the deceased had an income of Rs.2,00,000 per month.

COURT’S ANALYSIS

The court held in the affirmative that the driver and the respondent is vicariously liable to pay compensation. The provisions in respect of Section 166 of the Motor Vehicles Act and other Sections are benevolent provisions and it is settled principle of law that, in such cases the Tribunal is bound to grant just compensation. It was found by the court and the tribunal that the monthly income of the deceased according to Income tax returns filed was Rs.1,48,920 only. The court dismissed the order and findings of the Tribunal and allowed the party to deserve more compensation.

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Written by- Sanjana Ravichandran

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Complaint Seeking An Action Under Sub-Section (3) Of Section 156 Of Cr.P.C., The Learned Magistrate Cannot Act Mechanically: High Court of Bombay

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Title : Satish Panchariya v The State of Maharashtra

Citation : WP-1009-2012

Decided On: 4th November, 2023.

Coram: Justice A. S. Gadkari And Justice Shyam C. Chandak.

Introduction:

The Petitioners have invoked jurisdiction of the Court under Article 226 of Constitution of India read with Section 482 of the Criminal Procedure Code [for short “Cr.P.C.”] for quashing of M.E.C.R. No. 2 of 2012, registered with Malad Police Station, Mumbai, in furtherance of Order dated 9th January, 2012 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai in C.C. No.04/SW/2012.

Facts:

The learned Magistrate by its impugned Order dated 9th January, 2012, while directing the Police to conduct investigation under Section 156(3) of Cr.P.C., has himself admitted that without applying judicious mind to the case, he has passed the said Order by relying on the decision of the Hon’ble Supreme Court in the case of Shrinivas Gundluri and Ors v/s. SEPCO Electric Power Constructions Corporation & Ors. It is the settled position of law and as has been enunciated by this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of Maharashtra & Anr., reported in 2017 SCC OnLine Bom 3972, while dealing with the complaint seeking an action under Sub-Section (3) of Section 156 of Cr.P.C., the learned Magistrate cannot act mechanically. He is required to apply his mind to the contents of the complaint and the documents produced along with the complaint. That, an Order passed on the said complaint must record reasons in brief which should indicate application of mind by the Magistrate. However, it is not necessary to record detailed reasons.

There is another facet to the present Petition. In the complaint the Respondent Nos. 3 and 4 have represented themselves to be the authorized representatives of the Respondent No.2, Company for filing the said complaint and persuading the learned Magistrate in passing the impugned Order dated 9th January, 2012. The Authorised Representative/Director of Respondent No.2, Company, namely Retired Wing Commander Ajai Sharma has filed an Affidavit on behalf of Respondent No.2 dated 3rd April, 2012, duly affirmed before the Assistant Registrar of this Court.

he Respondent No.2 has not filed any complaint against any person and has also not authorised any person to file any complaint. That, the complaint bearing C.C. No. 04/SW/2012 filed before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, is without the knowledge of the Company and the Board of Respondent No.2 never passed any resolution to file any complaint or authorized Respondent No.3 to file any such complaint. That, the said complaint is filed without any authorization and without knowledge, consent or assent of the Board of Directors.

Court’s Analysis and Judgement:

The court held that a priori that, it is apparent that the Respondent Nos.3 and 4, has filed the said complaint without having any lawful authority. It is clearly a sheer sheer abuse of process of law adopted by Respondent Nos. 3 and 4 in the name of Respondent No.2 and as continuation of the said proceedings, would cause undue harassment and agony to the Petitioners for no illegal act committed by them.

The Court also did  not appreciate the mode and manner in which the impugned Order dated 9th January, 2012 is mechanically passed by the learned Magistrate, which is in utter disregard to the settled principles of law. Hence the order dated 9th January 2012 is quashed and set aside by the Court.

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Written By : Sanjana Ravichandran

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ED Summons to District Collectors A ‘Fishing Expedition’ Without Showing Existence Of Proceeds Of Crime: Madras High Court.

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ED Summons to District Collectors A ‘Fishing Expedition’ Without Showing Existence Of Proceeds Of Crime: Madras High Court.

Title : State of Tamil Nadu v Enforcement Directorate

Case No. : W.P.Nos.33459 to 33468 of 2023

Decided on : 30.11.2023.

CORAM : HONBLE JUSTICE S.S.SUNDAR, J. AND SUNDER MOHAN, J

Introduction

All the above writ petitions are filed by the State Government along with the Additional Chief Secretary to Government, Water Resources Department and the District Collectors concerned. Writ Petition Nos.33459, 33460, 33461, 33462 & 33467 of 2023 are filed by the State Government and two others to quash the respective impugned summon issued to the District Collector of Vellore District, Trichy District, Karur District, Thanjavur District and Ariyalur District, requiring the appearance of the respective District Collectors to give evidence and produce records as indicated in the annexure, in connection with the investigation/proceedings under the Prevention of Money Laundering Act, 2002 .

Fact of the Case

The respondent, namely, the Assistant Director, Directorate of Enforcement has filed an objection affidavit. The learned Additional Solicitor General raised a preliminary objection stating that the writ petitions are not maintainable by the State Government, as the State is not an aggrieved person to challenge the process of investigation. The learned Additional Solicitor General also relied upon a few complaints registered in different parts of the State. Referring to the Enforcement Case Information Report (ECIR), the learned Additional Solicitor General submitted that as per the First Information Report mentioned in the ECIR, prima facie, it is observed that the activities of illegal mining are happening in the State of Tamil Nadu in collusion with officials and local mafia, hand in glove.

Case Analysis and Judgment

Court sincerely appreciates the way in which the respondent had responded to these writ petitions within a short time. A detailed affidavit of objection is filed by the respondent raising several issues. The learned Senior Counsel appearing for the petitioners requested time to file reply in response to the objection in the form of affidavit. The learned Additional Solicitor General also submitted that they may be permitted to file a detailed counter affidavit.

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Madras High Court Asks Centre to Reconsider Enhancing Retirement Age Of Coast Guard Staff To 60 Years For All Ranks.

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Madras High Court Asks Centre to Reconsider Enhancing Retirement Age Of Coast Guard Staff To 60 Years For All Ranks.

Title : Lakshmichandra Harishchandra Sharma v. Union of India

Case No. : W.P.No.415 of 2021

Decided on : 23.11.2023.

CORAM : THE HON’BLE MR. SANJAY V. GANGAPURWALA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Introduction

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Declaration to declare Rule 20(1) of the Coast Guard (General) Rule 1986, relevant SRO 76 dated 19 April 1999 and the impugned decision of the 1 st respondent in No.14(14)2020-D(CG) communicated to the 2 nd respondent dated 21.07.2020 fixing the retirement age as 57 for Commandant as null and void and non est in law and consequently direct the respondents to fix the retirement age of the petitioner as 60 years at par with Deputy Inspector General of Indian Coast Guard instead of 57 years with all consequential service and other attendant benefits.

Fact of the Case

These writ petitions are filed by the petitioners, who were members of the Coast Guard with two limbs of prayers. Firstly, they challenge the constitutional validity of Rule 20(1) of Indian Coast Guard Rules, 1986. Secondly, they challenge the order passed by the Government of India, Ministry of Defense, dated 21.07.2020, refusing to enhance the age of retirement of the members of the Coast Guard up to the level of commandant also to be 60 years from 57 years.

Case Analysis and Judgment

In the result we dispose of the writ petitions with the following directions:

  • The impugned order of the first respondent bearing reference No.14 (14/2020 – DCG), dated 21.07.2020 shall stand set aside and the matter shall be reconsidered by the first respondent in view of the reasonings contained supra in the Judgment;
  • It would also be open for the petitioners to make such representation in detail and bringing forth such material before the first respondent within a period of three weeks from the date of receipt of a copy of the order and thereafter, the first respondent shall reconsider the issue in accordance with law, within a period of four months therefrom;
  • No costs. Consequently, the connected miscellaneous Petitions are closed.

https://www.livelaw.in/pdf_upload/lakshmichandra-harishchandra-sharma-v-union-of-india-506797.pdf

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“Apex Court Overturns Labour Court Decision: Upholds Employer’s Position on Workman’s Engagement and Onus of Proof.”

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Title: Shambhu Lal vs Union Of India

Citation: D.B. Civil Writ Petition No. 14655/2022

Coram: HON’BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA

Decided on: 17/05/23

Introduction:

The writ petition challenges the judgment dated 12.07.2022 from the Central Administrative Tribunal, Jaipur Bench. In this judgment, the Tribunal dismissed the Original Applications (‘OAs’) filed by the petitioners. The OAs contested the verbal termination orders dated 30.06.1992/01.07.1992.

Facts:

The writ petition challenges a judgment from the Central Administrative Tribunal, Jaipur Bench, dated 12.07.2022, which dismissed Original Applications (‘OAs’) filed by the petitioners contesting their verbal termination orders dated 30.06.1992/01.07.1992. The petitioners argue that the Tribunal erred in fact and law, asserting that the termination was malicious. They claim that the recruitment advertisement issued on 23.03.1991 was for short-term positions on sanctioned posts, not contractual employment. The petitioners allege no prior notice before termination, having worked more than 240 days in the twelve preceding months. They argue that since posts were available until 31.12.1993, terminating their services before this date is illegal.

The case history involves previous litigations, including a writ petition in 1992, an industrial dispute leading to a negative award in 2012, and subsequent writ petitions dismissed in 2017. The Division Bench granted liberty to the petitioners to challenge the termination order, leading to the filing of OAs before the Tribunal, ultimately dismissed on 22.07.2022.

Judgement analysis:

In this case, the Labour Court found a violation of Section 25-F of the Industrial Disputes Act, directing the reinstatement of the workman with 50% back wages. The employer’s writ petition challenging this decision was dismissed by the High Court, which upheld the award. The employer appealed to the Apex Court, arguing that both the Labour Court and the High Court erred in relying on factually and legally erroneous premises. The employer contended that the workman was engaged on a casual basis with daily wages for specific work and a specified period, falling under Section 2(oo) (bb) of the Act. The employer claimed that the details in this regard were undisputedly filed. The Apex Court, referencing precedents, held that the relief granted by the Labour Court and the High Court cannot be maintained.

Additionally, the Apex Court emphasized that the onus regarding working for more than 240 days rests on the workman, citing precedent. The Court allowed the appeal filed by the management, overturning the decisions of the Labour Court and the High Court.

The judgment concludes by stating that, based on the discussions, there is no case favoring the petitioners. The writ petition is dismissed as devoid of merit. This analysis highlights the Apex Court’s scrutiny of factual and legal aspects, emphasizing the employer’s position regarding the nature of the workman’s engagement and the onus of proof on the workman.

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Written By: Gauri Joshi

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