Category: Tort

Liability of registered owner of the vehicle

Liability after Sale of Vehicle:

It is true that in terms of Section 50 of the Act, the transfer of a vehicle ought to be registered within 30 days of the sale. Section 50(1) of the Act obliges the transferor to report the fact of transfer within 14 days of the transfer. In case the vehicle is sold outside State, the period within which the transfer ought to be reported gets extended. On the other hand, the transferee is also obliged to report the transfer to the registering authority within whose jurisdiction the transferee has the residence or place of business where the vehicle is normally kept. Section 50 thus prescribes timelines within which the transferor and the transferee are required to report the factum of transfer. As per Sub-Section 3 of said Section 50, if there be failure to report the fact of transfer, fine could be imposed and an action under Section 177 could thereafter be taken if there is failure to pay the amount of fine. These timelines and obligations are only to facilitate the reporting of the transfer. It is not as if that if an accident occurs within the period prescribed for reporting said transfer, the transferor is absolved of the liability.

Even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person … … … Merely because the vehicle was transferred does not mean that such registered owner stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person.

[Source: Prakash Chand Daga vs. Saveta Sharma, decided by SC on Dec. 14, 2018]

Liability of Insurance Company if vehicle is driven by unlicensed person

Compensation to victim of motor accident and liability of Insurance:

Facts and questions of law:

Vehicles insured with the petitioners were involved in accidents resulting in filing of claim applications by the respective legal representatives of the deceased(s) or the injured person(s), as the case may be.

Defences raised by the Petitioner company in the claim petitions purported to be in terms of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) were :

(a) driving licence produced by the driver or owner of the vehicle was a fake one;

(b) driver did not have any licence whatsoever;

(c) licence, although was granted to the concerned driver but on expiry thereof, the same had not been renewed;

(d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and

(e) the vehicle in question was driven by a person having a learner’s licence.

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Correct multiplier for death of victim aged about 29 years

Compensation for death in accident with motor vehicle:

Death of victim aged 29 years.

The case of the claimants rested on the premise that the deceased was likely to be made permanent in which event, he would be entitled to a higher salary. PW 3, who was the Secretary of the Trust, deposed that though the strength of the students had increased, and the workload had increased, persons such as the deceased continued in service on a contract basis for want of sanction from the government for the post. The High Court observed that the evidence of PW 3 was that if the government were to sanction the post, considering the seniority and experience of the deceased, the Trust would have appointed him as a permanent teacher in which event his salary, according to the scales of the 6th Pay Commission, would have been Rs 40,000 per month. The finding was that the deceased at the relevant time was 29 years of age; that he had completed his B.Ed. from the University of Mumbai and was an Assistant Teacher employed on a temporary/contract basis for teaching English from 2001 to 2006. The High Court adverted to the provisions contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. In this background, the High Court arrived at the finding that if the deceased were to be alive, he would have been regularized and would have drawn a salary of Rs 40,000/- per month. Continue reading “Correct multiplier for death of victim aged about 29 years” →

Compensation of 100 percent disability

Compensation for paraplegic victim:

Finding of High Court:

The High Court held that in the first information report which was registered on the date of the accident on the basis of the statement of the appellant, it was stated that the appellant was sitting on the mud-guard next to the driver of the tractor. Subsequently on 30 September 2005 another statement was recorded by the police in which the appellant stated that the accident had taken place as a result of the rash and negligent act of the tractor driver, due to which the tractor had turned turtle and fallen over the appellant. In the view of the High Court, the police had attempted to protect the liability of the owner and had recorded a further statement to support the plea that the appellant was a third party and that the tractor had fallen upon him. The High Court has also doubted as to how the police could have recorded the statement of the appellant on 30 September 2005 when he was shifted to M S Ramayya Hospital in Bangalore.

FIR at variance with ocular evidence:

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Tort: Compensation for death

Principles for determination of Compensation for death:

Loss of estate, loss of consortium and funeral expenses:

The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.

Just Compensation:

Section 168 of the MV Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. Continue reading “Tort: Compensation for death” →

Custodial Violence and Death of Prisoners in India

 If civilization is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy.
[Source: Rudul Sah v. State of Bihar,(1983) 4 SCC 141.]

Custodial Violence

Custodial violence has always been a matter of great concern for all civilized societies. Custodial violence could take the form of third degree methods to extract information – the method used need not result in any physical violence but could be in the form of psychological violence. Custodial violence could also include a violation of bodily integrity through sexual violence – it could be to satisfy the lust of a person in authority or for some other reason. The ‘Mathura Rape Case’ is one such incident that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a terribly disadvantaged and vulnerable condition. All these forms of custodial violence make it abhorrent and invite disparagement from all sections of civilized society.

The recent directives of Supreme Court, in regard to prison conditions:

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Fraud avoids all acts.

Fraud avoids all judicial acts, ecclesiastical or temporal

Fraud is a deception deliberately practiced to achieve unfair or unlawful gain. Fraud apart from being a criminal offence is also a civil wrong in India, as at most places. It is defined by section 17 of Contract Act of India. Misrepresentation is defined by section 18 of said Act. The definition of fraud and misrepresentation is as under:

Definition of fraud:

“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto his agent, or to induce him to enter into the contract;
(1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact; Continue reading “Fraud avoids all acts.” →

Homeopathy: Origin and Scope of Practice.

Practice of Allopathy by Homeopathic Doctor
if amounts to medical negligence: 

“Similia Similibus Curantur” (Like Cures Like) is the basis of a system of therapeutics known popularly as Homeopathy.

Homeopathy is based on the premise that most effective way to treat disease is to use drugs or other agents that produce the symptoms of the disease in healthy persons.

This theory had its origin in or about 460 B.C. when the Greek physician, Hippocrates, noted the similarity between the effect of some drugs and the symptoms of the diseases they seemed to relieve. It was, however, in the late 18th Century that this theory was tested and popularised by German Physician, Christian Friedrich Samuel Hahnemann as a new form of therapeutic treatment after six years test study of scores of drugs on himself and others. Continue reading “Homeopathy: Origin and Scope of Practice.” →

Tort: Scope of liability of public authorities.

Administrative Law – Public duty – Omission – Torts – Negligence – Damages.

Existence of Statutory negligence:

Duty of care must be carefully examined and the foreseeability of damages or danger to the person or property must be co-related to the public duty of care to infer that the ommission/non-feasance gives rise to actionable claim for damages against the defendant — Foreseeability of the danger or injury alone is not sufficient to conclude that duty of case exists

Duty of care:

The general rule is that the public authorities are liable for positive action (misfeasance) but not for omission (non- feasance). In considering the duty of public authority to avoid harm to those likely to be affected by the exercise of power or duty, the courts have evolved the relationship of proximity or neighbourhood nexus which are existing between the person who suffered damages and wrong-doer where there is allegation of wrong doing it has to be seen whether the latter ought reasonable to have foreseen that the carelessness on his part, is be likely to cause damage to the other. In other words, if it is a reasonable foreseeability that carelessness on the defendant’s part will cause damage to the plaintiff, then the defendant is plaintiff’s neighbour and prima facie owes towards the plaintiff a duty of care which may, however, be negatived on the ground of public policy or reasonable care taken at the operational stage.

Statutory power is not something like a statutory duty. Before the repository of a statutory power can be made liable for negligence for a failure to exercise it, the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed. The question whether the Act confers a private right of action depends upon the interpretation of the provisions of the Act. But by process of statutory interpretation, the courts may not superimpose a general Common Law duty on a statutory authority in order to give effect to its presumed idea of policy or duty. Common Law does not super-impose such a duty on a mere statutory authority. The nature and scope of the Common Law duty of care owed by a public authority exercising statutory powers must be discerned carefully by reading the provisions of the Act, the object it seeks to achieve and other relevant considerations. The public authority is under a duty to take some action whether or not in exercise of its statutory power or not to prevent injury only if its antecedent acts, have created or increased a risk of injury of that kind. The normal duty of care cannot be a duty to exercise the statutory power to prevent injury to him unless the Act has imposed such a duty or unless the authority has itself created or increased the risk of injury of the kind. In the absence of such a statutory duty, a normal duty of exercise of care cannot arise unless the act actually done in exercise of a statutory power, creates or increases the risk of foreseeable injury to another and then the duty is to do those acts with reasonable care and to take reasonable precautions to prevent that injury from occurring. The duty of care, therefore, must have co-relationship to the kind of damage that the plaintiff has suffered and not to the plaintiff or a class of which the plaintiff is a member.

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