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2009 (5) TMI 1022 - SUPREME COURT
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... ... ..... ection of employees and taken in ignorance of material and relevant factors. (See K.T. Veerappa v. State of Karnataka) Such a question does not arise in this case as it has been found that the action on the part of the appellant is grossly arbitrary. 29. It was furthermore contended by Mr. Saran that in the event a finding is arrived at that the Central Government employees had been given, an advance increment wrongly, similar benefit may not be granted to the respondents on the premise that no equality can be claimed in illegality. Such a case has never been made out by the appellants. Even otherwise, we are of the opinion, the Central Government employees have rightly been given the benefit of one additional increment in terms of the proviso appended to Regulation 81 of the Regulations. 30. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2009 (5) TMI 1021 - ANDHRA PRADESH HIGH COURT
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... ... ..... ducts of livestock or fruits and vegetables and may provide such facilities in the special market as may be specified by the Government from time to time, by a general or special order. (c) The market committee shall declare, by notification, the limits of every market established by it under Clauses (a), (b) and (bb) (hereinafter referred to as the market area). (4) As soon as may be after the establishment of a market under Sub-section (3), the Government shall declare by notification the market area and such other area adjoining thereto as may be specified in the notification, to be a notified market area for the purposes of this Act in respect of any notified agricultural produce, livestock or products of livestock. (5) Subject to the provisions of Sub-sections (1), (2), (3) and (4), the Government may, by notification,- (a) exclude from a notified market area, any area comprised thereon; or (b) include in any notified market area, any area specified in such notification.
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2009 (5) TMI 1020 - SUPREME COURT
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... ... ..... iew that there was no evidence of cruelty on the part of the appellant with a view to drive the complainant to commit suicide. The appellate Forum reached the conclusion that mental torture was of the magnitude that the complainant had to leave her matrimonial home during her pregnancy. The Revisional court did not find that the complainant had been subjected to cruelty continuously. 29. Thus, in our opinion, all the three courts below erred in not considering the case in correct perspective. The findings so recorded by the Courts below may be relevant for granting the relief in a matrimonial dispute i.e. divorce etc. but could not bring home the charge under Section 498A IPC. 30. Thus, in view of the aforesaid, conviction of the appellant under Section 498A IPC and punishment for the said offence awarded by the courts below are set aside. However, conviction and sentence under Section 494 IPC are maintained. 31. Appeal succeeds to the said extent and disposed of accordingly.
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2009 (5) TMI 1019 - SUPREME COURT
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... ... ..... rom the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra and Anr. JT 2008 (11) SC 609. 4. Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. 5. In the present case, if the petitioners surrender before the Court concerned and makes a prayer for grant of interim bail pending final disposal of the bail application, the same shall be considered and decided on the same day. 6. With the abovesaid observations, the petition stands disposed of.
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2009 (5) TMI 1018 - ALLAHABAD HIGH COURT
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... ... ..... ture because the nature of the activity does not result in the emergence of a new commercial commodity. Therefore, in order to come to the conclusion that an activity is a case of manufacture, the goods must have a new commercial identify. 6. Learned counsel for the assessee has also relied on a decision of this Court in the case of Commissioner of Trade Tax v. Nainital Dugdh Utpadan Sahkari Sangh Ltd., 2001 UPTC 328 wherein also this Court has explained the provisions of Section 2(e-1) of the U.P. Trade Tax Act and has come to the conclusion that where the goods remained the same, which are identifiable under the Act as the same commodity, it would not amount to manufacture. 7. In view of the above decisions, I am of the view that unbranded tee made from blending of tea also does not result in the manufacture of a new commercial commodity and it remains 8. The question is, therefore, answered in favour of the assessee and against the department. 9. The revision is dismissed.
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2009 (5) TMI 1017 - SC ORDER
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... ... ..... Kumar Bhatia,Adv. For the Respondent None ORDER UPON hearing counsel the Court made the following Delay condoned. Dismissed.
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2009 (5) TMI 1016 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... tly, the appellants could not have raised this issue before the Lower Appellate Court or before this Court, in view of the law laid down by the Hon'ble Apex Court in the case of Bachhaj Nahar v. Nilima Mandal and Anr. J.T. 2008 (13) S.C. 255 wherein it has been held that no question of law can be raised which was not pleaded/raised in the Lower Court. Secondly, the question whether possession was delivered to the plaintiff-respondent under the agreement is a question of fact which on appreciation of evidence was found by the Lower Appellate Court against the appellants. The Hon'ble Supreme Court in the case of Boodi Reddy Chandraiah and Ors. v. Angela Laxmi and Anr. (2007)8 S.C.C. 155, has held that an inference of fact from the recitals or contents of a document is a question of fact. 19. Thus, in view of the aforesaid, the substantial question of law as sought to be raised by the learned Counsel for the appellants does not arise in this appeal. No merits. Dismissed.
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2009 (5) TMI 1015 - SUPREME COURT
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... ... ..... urpose of Section 498A IPC. Proof of a legal marriage in the rigid sense as required under civil law is unnecessary for establishing an offence under Section 498A IPC. The expression marriage or relative can be given only a diluted meaning which a common man or society may attribute to these concepts in the common parlance, for the purpose of Section 498A IPC. A second wife who is treated as wife by the husband, relatives, friends or society can be considered to be 'the relative of the husband' for the purpose of Section 498A of IPC. If she inflicts cruelty on the legally-wedded wife of the husband, an offence under Section 498A IPC will not lie against her. 21. Applying the principles laid down in various decisions referred to above, we have no doubt, in our mind, that the appellant is not a relative of the husband of the first informant. 22. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed.
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2009 (5) TMI 1014 - BOMBAY HIGH COURT
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... ... ..... ment of the Madras High Court in the case of Commissioner of Wealth-tax V/s. A.K. thanga Pillai 252 ITR 260 (Mad). The said judgment has now been approved by the Supreme Court in the case of CIT V/s. Algendram Finance Limited reported in (2001) 252 ITR 260. 3. In this view of the matter, there is no substantial question of law involved in this appeal. The appeal, is therefore, dismissed. No order as to costs.
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2009 (5) TMI 1013 - ITAT DELHI
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... ... ..... company has to act through its directors. It is also noticed the company cannot have a personal expenditure. It is further noticed that the Hon’ble Bombay High court has categorically held that the expenses incurred for club membership fees of the employees cannot be disallowed by invoking the provisions of Section 40A(v). In the circumstances, respectfully following the decision of the Hon’ble Bombay High Court in the case of Otis Elevators referred to supra and American Express International Banking Corporation referred to supra the findings of the CIT (A) on this issue stands upheld. Consequently, the appeal of the Revenue on this issue stands dismissed. 36. In the circumstances, the appeal of the revenue is partly allowed for statistical purposes. 37. In the result, the appeal of the assessee is partly allowed for statistical purposes and the appeal of the revenue is partly allowed for statistical purposes. 38. The order pronounced in the open court on .2009.
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2009 (5) TMI 1012 - SUPREME COURT
Avoidance of execution and registration of deeds of conveyance - Mode of transfer of freehold immovable property by increasing tendency to adopt `Power of Attorney Sales' - execution of sale agreement/ general power of attorney/will (`SA-GPA-Will transactions') - No action taken against FIR for offences punishable u/s 406, 420, 467, 468, 471 and 120B of IPC - filed an application under Right to Information Act, 2004 (`RTI Act') - Petitioner lodged a criminal complaint against Ramanath and members of his family who executed the sale agreement/ GPA/will in favour of the petitioner and another complaint against Dharambir Yadav and his son in the District Court.
HELD THAT:- The `Power of Attorney Sales' as a method of `transfer' was evolved by lawyers and document writers in Delhi, to overcome certain restrictions on transfer of flats by the Delhi Development Authority (for short `DDA'). To avoid the cumbersome procedure in obtaining permission and to avoid payment of the huge part of the price to the DDA as unearned increase, a hybrid system was evolved whereby the allottee/holder of the flat, on receiving the agreed consideration would deliver the possession of the flat to the purchaser and execute the following documents:
(a) An Agreement of sale confirming the terms of the sale, delivery of possession and payment of full consideration and undertaking to execute any document when required in future.
(b) An Irrevocable General Power of Attorney in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
(c) A will bequeathing the property to the purchaser as safeguard against the consequences of death of the vendor before transfer.
The `Power of Attorney Sales', as noticed above was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser.
In fact, it is stated that DDA itself ultimately recognizes `Power of Attorney Sales' by accepting applications from purchasers under `Power of Attorney Sales' for conversion from leasehold to freehold and conveyance of the flats. We will therefore presently exclude the `power of attorney sales' of DDA flats from the purview of the present exercise.
Extension of the concept of such `Power of Attorney Sales' by execution of SA/GPA/Will with reference to freehold properties - Section 49 of The Registration Act, 1908, provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.
Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions has disastrous collateral effects also.
When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions.
We are therefore of the view that the situation warrants special measures. We are informed that sometime back in 2008, there was a proposal to amend Section 147 of Delhi Municipal Corporation Act, 1957 to check and discourage `power of attorney sales'. There was also a proposal to have special enactment relating to registration and recording of title in Delhi. But so far nothing appears to have fructified. It is the dream of every citizen to own a house or a plot of land. The citizens must be enabled by the government to do so with safety, security and without fear of litigation or defects in title.
We therefore request the Solicitor General to appear in the matter and give suggestions on behalf of Union of India. We also direct notice to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra (represented by their respective Chief Secretary/Revenue Secretary) to consider issues.
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2009 (5) TMI 1011 - SUPREME COURT
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... ... ..... spital regarding the wrong transfusion of blood given to the patient, an inquiry was made and it was found correct. The damage control treatment started only after the written complaint was given by the complainant. Though it is argued by the Counsel for the Appellant that the percentage levels were brought down to normal, it is very clear to us that the internal imbalances of liver and kidney functioning and deteriorating hemoglobin levels started only after the mismatched blood transfusion was given. Though septicemia has been written as the ultimate cause of death, the patient's health took a nose dive only after wrong blood was given to her and this is clearly negligence on the part of the Doctors of the Hospital which the appellants cannot disown or absolve themselves.... 25. We concur with the view of the National Commission as it does not suffer from any error of law. 26. In the result, the appeal fails and is dismissed with costs which we quantify at Rs. 20,000/-.
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2009 (5) TMI 1010 - KERALA HIGH COURT
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... ... ..... 6 or 29.11.1996, the last date for filing the complaint would be 13.1.1997 or 14.1.1997. So, the court held that the initiation is barred by limitation. From the discussion made in that decision, it has to be stated that the date to be reckoned is the last date on which the postman had taken the envelop. A perusal of the said fact in this case would reveal that it was taken on 3.8.1998. When 15 days is calculated from that date including 3.8.1998, 15 days will expire on 17.8.1998 and 30 days from the date 17.8.1998 would be over on 16.9.1998 whereas the complaint is filed here only on 18.9.1998. So, it has to be held that the complaint is not filed within the statutory period and therefore, though there is difference in one or two days, the net result is that the action initiated is beyond the period prescribed and therefore, the prosecution will not lie. I do not find any ground to interfere with the decision rendered by the trial court and therefore the appeal is dismissed.
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2009 (5) TMI 1009 - SUPREME COURT
Pilot project - Validity of the Swiss Challenge Method adopted by the Maharashtra Housing and Area Development Authority ("MHADA") - Inviting public tender for development of the Government lands - proposal received from a private entrepreneur i.e. Ravi Development for development of undeveloped land - HELD THAT:- In the present project, constructed built up area with richer specifications is to be handed over by Ravi Development to MHADA free of costs in turn MHADA will be at liberty to price these tenements in accordance with policies of MHADA or as may be determined by MHADA. Therefore, utilization of maximum permissible FSI, adopting higher specifications and effecting utilization of scarce land for housing and yet make LIG, MIG housing group financially attractive to the people is possible through joint venture of public and private bodies in which reasonable built area be available by private developer free of cost to MHADA. The above claim and concept cannot be ignored lightly.
We conclude that the impugned pilot project or initiation taken by the Government of Maharashtra along with MHADA to encourage public-private participation is in accordance with the need of the time as well as a laudable effort. But to make it an effective approach Swiss Challenge Method or any other encouraging concept should be duly publicized first. The effort of public-private participation can only be possible when private entities are aware of such scheme. Also in the scheme of availing a new system thorough rules and regulations are needed to be followed otherwise unfairness, arbitrariness or ambiguity may creep in. In order to avoid such ill-effects the State Government is suggested to consider the following aspects:
1. The State/Authority shall publish in advance the nature of Swiss Challenge Method and particulars;
2. Publish the nature of projects that can come under such method;
3. Mention/notify the authorities to be approached with respect to the project plans;
4. Mention/notify the various fields of the projects that can be considered under the method;
5. set rules regarding time limits on the approval of the project and respective bidding:
6. the rules are to be followed after a project has been approved by the respective authorities to be considered under the method.
7. All persons interested in such developmental activities should be given equal and sufficient opportunity to participate in such venture and there should be healthy inter se competition amongst such developers.
These suggestions are not exhaustive and the State is free to incorporate any other clauses for transparency and proper execution of the scheme. The State Government is suggested to frame regulations/instructions on the above lines and take necessary steps thereafter in future.
Thus, the common impugned judgment and order of the Bombay High Court in W.P. (L) are set aside. Consequently, the appeals are allowed.
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2009 (5) TMI 1008 - SUPREME COURT
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... ... ..... Court clearly held In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. In A.R. Antulay v. R.S. Nayak and Anr. 1988 CriLJ 1661 a seven Judge Bench of this Court has also held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be nullity. See also State of Haryana v. State of Punjab (2004) 12 SCC 673 and Rajasthan State Road Transport Corporation and Ors. v. Zakir Hussain (2005) IIILLJ 786SC 18. For the reasons aforesaid the impugned order cannot be sustained. It is set aside accordingly. The appeal is allowed.
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2009 (5) TMI 1007 - SUPREME COURT
Murder - common motive or prior conspiracy - Offence punishable u/s 307 and 302 r/w Section 149 IPC and u/s's 3 and 5 of Explosive Substances Act, 1908 (`Explosive Act') - explosion of bombs - sustained splinter injuries - Delay in lodging the FIR - Power of an appellate court in an appeal against an order of acquittal - A-5 died on the date of the occurrence while A-8 died during the pendency of the trial - there are 13 accused persons whose case remains to be considered - HC acquitted A-16 and A-17 from all the charges and convicted the rest of the accused -
HELD THAT:- Bare reading of Section 378 (appeal in case of acquittal), makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence.
It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
Powers of Appellate Court - Chandrappa and Ors. v. State of Karnataka [2007 (2) TMI 704 - SUPREME COURT],the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out.
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge.
While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [1988 (8) TMI 421 - SUPREME COURT].
It is to be noted that in the instant case the incident took place in front of MDO office around 1.40 p.m. The finding of the trial Court is to the effect that murder of deceased took place at 1.40 p.m. and the same fact is not disputed by the accused persons. Between 2.40 and 2.45 p.m. the deceased and the injured were taken to the Government Hospital by PW-9 which is also 12 KM from the place of occurrence. The medical intimation is Ext.P-25 which was sent to the Station Incharge at 2.45 p.m. PW-1 the de facto complainant was examined by PW-22 at around 3.30 p.m. The Station Incharge received information around that time. At 4.00 p.m. the statement of the de facto complainant (PW-1) was recorded by the Head Constable in the presence of PW-22. The statement of PW-1 along with Ext.P-25 was sent to Police Station on the point of jurisdiction and the same was registered by PW-21.
The inquest was held at around 9 to 12 p.m. and copy of FIR was received by the Magistrate. It is to be noted that since the Magistrate was on leave and Magistrate at another place was not the incharge, it was sent to another Court which is at a distance of 60 K.M. as is evident from the evidence of PW-21. Therefore, there is no delay in sending the FIR to the Magistrate. The allegation that the FIR was ante timed is without any foundation.
The impugned judgment cannot be said to be suffering from infirmity to warrant interference. The appeal fails and is dismissed.
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2009 (5) TMI 1006 - SUPREME COURT
Quantum of compensation in Motor Accident Claims - Payment of "just compensation" - Multiplier Method for calculating pecuniary loss or loss of dependency - Quantify Non-pecuniary compensation - Conventional compensation - Rash and Negligent driving - School bus after overrunning the road and breaking the railing, drowned in Yamuna river - 29 children died - claim for fault liability and sought for payment of compensation u/s 163A r/w Second Schedule of the Motor Vehicle Act, 1988 (`the Act') - Tribunal not awarded interest from the date of petition till realization - HC by its common order held that the appellants are entitled to enhancement of compensation in all the cases and also directed that the dependents would be entitled to interest but would not withdraw the principal amount during the lock-in period of six years without the permission of the Tribunal.
HELD THAT:- No amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simply-pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life etc. The Act provides for payment of "just compensation" vide Section 166 and 168. It is left to the courts to decide what would be "just compensation" in facts of a case.
Under the Second Schedule of the Act in case of a non earning person, his income is notionally estimated at ₹ 15,000/- per annum. The Second Schedule is applicable to claim petitions filed u/s 163A. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable u/s 166 r/w 168A, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional case Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (2) TMI 505 - SUPREME COURT].
The date of accident is 18.11.1997. Prior to this, the Second Schedule of the Act was already introduced w. e. f. 14.11.1994. Thus, the notional income mentioned in the Second Schedule and the multiplier specified therein can form the basis for the pecuniary compensation for the loss of dependency in the present cases. No fact and reason was highlighted during the arguments why the Second Schedule should not apply in the present cases.
The Second Schedule also provides for deduction of 1/3rd consideration towards expenses; which the victim would have incurred on himself if he had lived. As compensation for loss of dependency is to be calculated on the basis of notional income because the deceased was a child. It by necessary implication takes into account future prospects, inflation, price rise etc. Therefore keeping in view of Second Schedule of the Act, this Court do not see any reason to differ with the view taken by the Tribunal as well as the HC in so far as award of pecuniary compensation to the dependents/claimants is concerned.
We must point out here that the learned Counsel for the appellants had argued that the notional sum of ₹ 15,000/- should be enhanced and increased as the legislature has not amended the Second Schedule and the same continues to be in existence since it was enacted on 14.11.1994. We are not examining and going into this aspect as the accident had taken place in the present case nearly three years after the enactment of the Second Schedule. The time difference between the date of the enactment and the date of accident is not substantial.
While quantifying and arriving at a figure for "loss of expectation of life", the Court have to keep in mind that this figure is not to be calculated for the prospective loss or further pecuniary benefits that has been awarded under another head i.e. pecuniary loss. The compensation payable under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which results in constant pain and suffering.
Conventional compensation - The term "conventional compensation" used in the said case has been used for non pecuniary compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to ₹ 50, 000/- as conventional figure. The reason was loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non- pecuniary compensation should not be fixed on basis of economic wealth and background.
In M.S. Grewal & anr. v/s Deep Chand Sood & ors. [2001 (8) TMI 1450 - SUPREME COURT], compensation of ₹ 5 lakhs was awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent No. 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of ₹ 5 lakhs as awarded by the HC was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case.
A forceful submission has been made by the learned Counsels appearing for the claimants-appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below.
On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. We deem it appropriate to grant compensation of ₹ 75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. We would like to clarify that this amount i.e. ₹ 75,000/- is over and above what has been awarded by the HC.
Pecuniary and Non-pecuniary damages - We are of the considered view both the Tribunal as well as HC has awarded the compensation on the basis of Second Schedule and relevant multiplier under the Act. However, we may notice here that as far as non-pecuniary damages are concerned, the Tribunal does not award any compensation under the head of non-pecuniary damages. However, in appeal the HC has elaborately discussed this aspect of the matter and has awarded non-pecuniary damages of ₹ 75,000. Needless to say, pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses.
Non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. It is difficult to quantify the non-pecuniary compensation, nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration.
We have noticed that the HC in present case has enhanced the compensation in this category by ₹ 75, 000/- in all connected appeals. We do not find any infirmity in that regard.
Interest - Tribunal had directed for payment of interest for only four years at the rate of 6% per annum from the date of filing of the claim petition till the award and in case of payment was not made within 30 days then further interest at the rate of 6% from the date of award till payment. In appeal, HC awarded 7% per annum from the date of filing of the petition till payment. We find the interest awarded by the HC as just and proper, so the same need not be disturbed.
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2009 (5) TMI 1005 - DELHI HIGH COURT
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... ... ..... idence the statement under Section 67 must definitely be shown to be voluntary. In the present case, the DRI has failed to show that the statement made by the petitioner was in fact voluntary. The reliance upon the judgment in Union of India v. Munna is misplaced as it is distinguishable on facts. The petitioner in the instant case cannot be said to be in conscious possession of the heroin in question. 14. For all of the aforementioned reasons, this Court finds that the impugned order on charge and order framing charge against the petitioner is not sustainable in law and is accordingly set aside. The petitioner will stand discharged in the SC No. 14-A/2008 titled "Directorate of Revenue Intelligence v. Rohit Goel and Ors.". It is made clear that however the case will continue as far as the other co-accused are concerned. 15. The petitions stands allowed. A copy of this order be sent to the trial court concerned forthwith through a Special Messenger. 16. Order dasti.
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2009 (5) TMI 1004 - SUPREME COURT
Validity of Bail granted already - Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of the offence had already been taken? - HELD THAT:- The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power under Sub-section (2) of Section 167 of the Code.
Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody ordinarily unless their bail was cancelled. The High Court, in our opinion, was not correct in holding that as further investigation was required, Sub-section (2) of Section 167 of the Code gives ample power for grant of police remand.
Furthermore in this case the Special Investigating Team has already submitted its report to this Court. Nothing has been pointed out before us as to why even the bail granted to the appellants should be cancelled so as to enable us to consider that question independently. No sufficient or cogent material has been placed on record by the State or the Special Investigating Team in this behalf.
Thus, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed.
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2009 (5) TMI 1003 - DELHI HIGH COURT
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... ... ..... representation of the petitioner afresh after taking into account the current state of law as prevailing in India. As indicated by the learned Counsel for the petitioner, the detaining authority, who considers the representation, ought to also examine the decisions of the Supreme Court in the case of Deepak Bajaj v. State of Maharashtra and Anr. 2008 (14) SCALE 62, Maqsood Yusuf Merchant v. Union of India and Anr Crl. A. 1337/2008 and Yusuf Razak Dhanani v. Union of India WP (Crl) 132/2007 and a decision of this Court in Gopa Manish Vohra v. Union of India WP(Crl) 2444/2006 dated 10.02.2009, all of which have been rendered after the passing of the order dated 29.10.2003. 7. The petitioner is permitted to file a comprehensive representation within two weeks from today. The respondents are directed to take a decision on the said representation within eight weeks thereafter. Till the representation is decided, no coercive steps be taken. 8. The writ petition stands disposed of.
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