Category: Uncategorized

Compensation for death due to medical negligence

How to value human life?

Human life is most precious. It is extremely difficult to decide on the quantum of compensation in medical negligence case as the same is highly subjective in nature.

In case of Sarla Verma (2009) 6 SCC 121, Supreme Court discussed “just compensation.

In Kunal Saha case (2014) 1 SCC 384, Supreme Court rejected the multiplier method and held that a “no-fault” motor vehicle accident should not be compared with the case of death from medical negligence under any condition. It was held that there were problems in using a “strait-jacket formula” for determining the quantum of compensation. The multiplier method used in motor accident cases thus is not conclusive for just, fair and adequate compensation. I

n Halsbury Laws of England 4thEdition page 446, it has been stated with regard to non-pecuniary loss that pattern of compensation awarded is for pain and suffering and loss of amenity constitutes a conventional sum which is taken to be a sum which society deems fair, fairness being interpreted in the light of previous decisions”.

In Nizam’s case (2009) 6 SCC 1 the Supreme Court did not apply the multiplier method and awarded compensation based on the nature of injury, expenditure incurred and expenditure likely in future. Thus there is no restriction upon courts while awarding compensation it has to be confined to what is demanded by the complainant.

In V. Krishna Kumar (2015) 9 SCC 388, Supreme Court while relying on the principle of “restitutio in integrum” as recognized in Malay Kumar Ganguly case (2009) 9 SCC 221 and Kunal Saha (2014) 1 SCC 384 has further weighed the “apportioning of inflation” based on the RBI data of average inflationary rate between 1990-1991 and 2014-2015 and formulated standard future value; (FV) formula as below:

FV = PV (Present Value) x (1+r)n ( r= rate of return; n = time period)

Recently, the Constitution Bench of Supreme Court in the case of National Insurance Co Ltd (2017) Scale 12 determined just compensation in fatal accident cases has inter alia concluded that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospective, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age was between 40-50 years. In case the deceased is was between the age of 50-60 years the addition should be 15%. Actual salary should be read as actual salary less tax. In case the deceased was self employed of on a fixed salary, an addition of 40% of the established income when the deceased was less than 40 years of age, 25% when the deceased was 40 to 50 years and 10% for the age group between 50-60 years. The established income means the income minus the tax component.

Rejection of plaint by court at pre-trial stage.

Drastic power of Rejection of plaint.

A civil action called civil suit commences with filing of a petition called plaint. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Courts.

Consideration of pleadings:

Continue reading “Rejection of plaint by court at pre-trial stage.” →

Matrimonial offence: Denial of sexual consortium.

Denial of sexual consortium is a matrimonial offence

Denial of sex by spouse:

Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse.

Views of Supreme Court of India in earlier cases:

A Bench of Three Judges of the Supreme Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 enumerated some of the illustrations of mental cruelty. Paragraph 101 of the said case is being reproduced below:

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill [pic]conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

xx xx xx xx The above mentioned illustrations, No. (viii) and (xii) given in Samar Ghosh case (supra), support the view taken by the High Court in holding that in the present case the wife has treated her husband with mental cruelty.

In Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778 regarding legal proposition on aspect of cruelty Court made the following observations:

31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

32. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the [pic]impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

In view of the above principle of law laid down by this Court, and having considered the submissions of parties, and the evidence on record, we do not find any ground to interfere with the decree of divorce passed by the High Court on the ground of cruelty.

[Source: Vidya v. Kartik (Supreme Court of India)]

Death sentence.

Considerations to award death sentence

Where possibility of reformation can not be ruled out, death sentence commuted to life imprisonment.

Death SentencePenal Code 1860, Section 360.

The appellant was the State President of the Youth Congress in Delhi. The deceased was a qualified pilot and she was also the State General Secretary of Youth Congress (Girls Wing), Delhi. She was an independent lady, who was capable of taking her own decisions. From the evidence on record, it cannot be said that she was not in touch with people residing outside the four walls of her house. Evidence discloses that even on the date of incident at around 4.00 p.m. she had contacted PW-12 Matloob Karim. She was not a poor illiterate hapless woman. Considering the social status of the deceased, it would be difficult to come to the conclusion that the appellant was in a dominant position qua her. The appellant was deeply in love with the deceased Continue reading “Death sentence.” →

Women as seen by law.

Women

“Frailty, the name is woman”,

It was the ignominy heaped upon women of Victorian Era by William Shakespeare in his great work `Hamlet’.

The history or sociology has, however, established the contrary, i.e., `fortitude’, thy name is woman; `caress’, thy name is woman; `self-sacrifice’, thy name is woman; tenacity and successful pursuit, their apathetically is women. Indira Gandhi, Margaret Thatcher, Srimovo Bhandarnaike and Golda Meir are few illustrious women having proved successful in democratic governance of the respective democratic States. Amidst them, still, a class of women is trapped as victims of circumstances, unfounded social sanctions, handicaps and coercive forms in the flesh trade, optimized as `prostitutes’, (for short, `fallen women’)

Extracted from:
Gaurav Jain vs Union Of India

 

Constitution of India:

Article 51-A, Fundamental duties:

It shall be the duty of every citizen of India:

(e) ………to renounce practices derogatory to the dignity of women;

Article 39, Certain principles of policy to be followed by the State:

(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;

……….

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;………..

 

Appeal: Absence of remedy of appeal is not unconstitutional.

Remedy of appeal if not necessary:

Quasi judicial proceedings without remedy of appeal; Validity.

It is attractive to hear the argument that an order passed by an authority, which becomes infallibly final in the absence of an appeal or revision, is apt to be arbitrary and bad.

 

An appeal is a desirable corrective but not an indispensable imperative and while its presence is an extra check on wayward orders its absence is not a sure index of arbitrary potential. It depends on the nature of the subject matter, other available correctives, possible harm flowing from wrong orders and a wealth of other factors.

Necessity of appeal is determined by subject matter:

If a death sentence is allowed to become conclusive without so much as a single appeal, Articles 14 and 21 may imperil such a provision but if a fine of Rs. 5/- imposed for a minor offence in a summary trial by a First-Class Magistrate is imparted a finality, subject, of course, to a constitutional remedy in the event of perverse or patent illegality we may still uphold that provision with an easy constitutional conscience. In the present case, a hearing is given to the affected party. Reasons have to be recorded in the order awarding damages. The writ jurisdiction is ready to review glaring errors. The maximum harm is pecuniary liability limited by the statute. A high official hears and decides. Under such circumstances the needs of the factual situation and the legal milieu are such that the absence of appellate review in no way militates against the justice and reasonableness of the provision. The argument of arbitrariness on this score is untenable. The section is not bad. Maybe, action under the section may be challenged in writ jurisdiction provided infirmities which attract such jurisdiction vitiate the order.

[Source: Per Kirishna Aiyer J. in Organo Chemicals.]

Judgement must contain reasons

Why judgment must contain reasons:

It is duty of the Judge to uphold his own integrity and let the losing party know why he lost the case.

Reason is the heartbeat of every conclusion, and without the same it becomes lifeless.

The absence or reasons has deprived the Supreme Court from knowing the circumstances which weighed with the High Court to dismiss the matter in limine. It was an unsatisfactory method of disposal. The necessity to provide reasons, howsoever brief, in support of the High Courts’ conclusions is too obvious to be reiterated. Obligation to give reasons introduces clarity and excludes or at any rate minimises the chances of arbitrariness and the higher forum can test the correctness of those reasons. It becomes difficult for this Court in all such cases to remit the matters to the High Court inasmuch as by the time cases reach this Court, several years would have passed. In an article ‘On Writing Judgments’, Justice Michael Kirby of Australia [(1990) (Vol.64. Australian Law Journal p.691)] has approached the problem from the point of view of the litigant, the legal profession, the subordinate Courts/tribunals, the brother Judges and the judges’ own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the Judgment for the learning and precedent that they provide and for the reassurance of the quality of the Judiciary which is still the centre-piece of our administration of justice. It does not take long for the profession to come to know, including through the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact etc. The reputational considerations are important for the exercise of appellate rights, for the Judges’ own self-discipline, for attempts at improvement and the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower heirachy of Judges and tribunals is of utmost importance. Justice Asprey of Australia had even said in Pettit vs. Dankley [(1971 (1) NSWLR 376 (CA)] that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant. In our view, the satisfaction which a reasoned Judgment gives to the losing party or his lawyer is the test of a good Judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal.

[Source: Hindustan Times Limited vs Union of India (Supreme Court of India) See also  Fauja Singh vs. Jaspal Kaur (1996 (4) SCC 461)]

 

Providing of reasons in orders is of essence in judicial proceedings:

Every litigant who approaches the Court with a prayer is entitled to know the reasons for acceptance or rejection of such request. Either of the parties to the lis has a right of appeal and, therefore, it is essential for them to know the considered opinion of the Court to make the remedy of appeal meaningful. It is the reasoning which ultimately culminates into final decision which may be subject to examination of the appellate or other higher Courts. It is not only desirable but, in view of the consistent position of law, mandatory for the Court to pass orders while recording reasons in support thereof, however, brief they may be. Brevity in reasoning cannot be understood in legal parlance as absence of reasons. While no reasoning in support of judicial orders is impermissible, the brief reasoning would suffice to meet the ends of justice at least at the interlocutory stages and would render the remedy of appeal purposeful and meaningful. It is a settled canon of legal jurisprudence that the Courts are vested with discretionary powers but such powers are to be exercised judiciously, equitably and in consonance with the settled principles of law. Whether or not, such judicial discretion has been exercised in accordance with the accepted norms, can only be reflected by the reasons recorded in the order impugned before the higher Court. Often it is said that absence of reasoning may ipso facto indicate whimsical exercise of judicial discretion.

[Source: State of Rajasthan v. Rajendra Prasad Jain(Supreme Court of India)]
[See also  Shroff v. Mistry (Gujarat High Court) which contains extracts from virtually all similar decisions of Supreme court of India on the subject.]

Doctor is not a workman.

Legal status of an employed Doctor:

Termination of a Doctor from the position of Junior Surgeon in a private hospital without being tendered the retrenchment compensation and notice pay under section 25-F of Industrial Disputes Act, 1947, which is required to be paid to a workman. This makes termination illegal. But the question is:

Is doctor a workman?

The term workman has been defined in Section 2(s) of the Act, which reads:-

“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee
of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”

There is a distinction between a person employed in a hospital and a person employed in an industry and that not every time that a doctor was employed in an institution; he/she became a workman. Nature and character of the relationship between the employee and the employer had to be examined and ascertained to decide whether a doctor was a workman or not. Further, whereas ‘occupation’ was a principal activity that earned a regular wage or salary for a person, a ‘profession’ was an occupation that required extensive training and the study and mastery of specialised knowledge and usually had a professional association, ethical code and process of certification or licensing.

[Claimant Doctor] was a professional and it could not be said that he was engaged/employed for doing technical work. He did use his professional skills and knowledge for diagnosing the diseases and treating the patients but this could not be said to fall within the ambit and scope of Section 2(s) of the Industrial Disputes Act, 1947.

[Management of Multan Sewa Samiti Charitable Eye Hospital v. P.O. Labour Court -II.(Delhi High Court)]

Summoning of witness in Civil Suit

Considerations for court while summoning a witness:

Discretion of court:

Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bona fides of the request has to be looked into and appropriate orders passed.

Suit for recovery of attorney/lawyer fee:

The controversy between the parties was that the plaintiff, who is an advocate/lawyer, was engaged for services to be rendered to defendant No. 1. The case of the plaintiff is that his dues on account of professional fees have not been cleared by the defendants. Apart from this, the plaintiff has also claimed damages from the defendants. The case of the defendants is that the defendant No. 6, which is an international firm of trade mark attorneys and had been looking after the interests of Defendant No. 1, had dealt with the plaintiff for the purposes of filing oppositions in respect of certain trade mark applications in India. The said oppositions were to be filed by the plaintiff in respect of the trade marks of the defendant No. 1. It is also pertinent to note that initially the plaintiffs’ services had been engaged on behalf of Dunlop Slazenger Group Limited. The latter company was acquired by the defendant No. 1 in 2001. Mr Mike Ashley, who is sought to be summoned as one of the witnesses, is the sole shareholder of the said defendant No. 1 company.

Summoning other party as witness:

While there is no bar to a party seeking the summoning of another party in the same suit as his witness, it is also clear that such an act is unusual and that it should only be permitted if the application for summoning the opposite party is bona fide and is not vexatious or an abuse of the process of the Court. Apart from this, there is the standard question which the Court has to consider in the case of summoning any witness as to whether it is necessary to summon the witness for which the application has been moved. Order 16 Rule 1 (2) CPC clearly stipulates that the party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. This in itself indicates that it is not as if the Court has to allow every application for summoning of a witness. The party seeking the summoning of a person as a witness has to specifically indicate the purpose for which he or she is proposed to be summoned. It is obvious that the Court has to apply its mind and exercise discretion in a judicial manner.

[Source: Dr. Amitabh Sen v. Sports World International. (Delhi High Court)]

Thus a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for which the witness is proposed to be summoned.

Comment: It appears, the witness can be summoned by a party to prove a specific point in case but not to make a fishing or roving inquiry to establish a fact not specifically pleaded or fact nor specified in the application to summon the witness.

Inspection of place of offence by Magistrate

Local Inspection by Magistrate:

Considerations for local inspection of the place of offence by Magistrate himself:

Section 310 of Criminal Procedure Code 1973 (corresponding to  Section 539 of Criminal Procedure Code) provides about inspection is as under:

310. Local inspection. (1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.

Scope of power of local inspection:

If a Magistrate makes use of knowledge derived from a local inspection without affording the accused an opportunity to cross-examine or to explain the points against him, he acts with material irregularity sufficient to vitiate the trial. It was also held that a local inspection of the Magistrate is permitted for the purpose of properly appreciating the evidence in this case and cannot take the place of evidence itself. [Source: Tirkah v. Nanak AIR 1927 All. 350]

In another case the Magistrate visited the spot on the evening and came to the conclusion that there was sufficient light to enable anybody to mark closely the features of a stranger. The High Court held that the learned Magistrate assumed that the condition of the light and atmosphere were the same on the night that he went to the spot as they were at the time of the occurrence. It was held that the Magistrate had gone beyond the scope of Section 539(b) and result of such inspection could not be made the basis of conviction. [Source: Sheik Badasah v. Emperor, (1939) 40 Crl. Law Journal 624]

The only purpose of local inspection being to properly appreciate the evidence given at the trial and it is only reasonable that the local inspection should, as a rule, come after all the evidence is recorded…. Even that should be resorted to very sparingly, the Court taking special precautions to prevent itself becoming a witness unconsciously. On some occasions, it is practically impossible for the Court to make a local inspection, and not import new materials collected by it. The moment the Court collects new materials it becomes a witness, and as it cannot cross-examine itself, it cannot try the case.

[Source: Dwaraka Prasad v. Ram Nath Modi, AIR 1951 Vindhyapradesh 1]

Code provides for the Judge making a local inspection himself. That inspection can be used by him for properly appreciating the evidence in the case and for no other purpose. It cannot be used for preparation of the background for appreciating the evidence of the witnesses because preparation of the background has to be made by the parties themselves by letting in evidence forthat purpose and the Judge is not expected to supply that lacuna in evidence. Preparation of the background to appreciate the evidence of witnesses is not the same as “properly appreciating the evidence’contemplated by the Section.  …If the impressions gained by the Judge on controversial matters are allowed to get in without being tested by cross-examination there is the likelihood of miscarriage of justice resulting from it.

[Source: State of Kerala v. Chandran 1973 KLT 625 DB: 1974 Crl. Law Journal 52.]

In Pritam Singh v. State of Punjab a three Judge Bench of the Supreme Court held that a Magistrate is not entitled to allow his views or observations to take the place of evidence because such view or observation cannot be tested by cross-examination.

A local inspection may be made for the purpose of properly appreciating the evidence given during the trial. The magistrate should not, in making the local inspection, do any thing which would reduce him to the position of a witness.

In the present case, it is seen from the notes of the learned Magistrate pertaining to his local inspection, that he did not stop merely at observing the spot where the occurrence is alleged to have taken place, He seems to have conducted some sort of an investigation at the spot to find out whether a hole in the ground was or was not of recent origin. He also seems to have taken certain measurements. He appears also to have made enquiries of the people there, including the accused and the complainant. That he did all these things can be seen, from his notes pertaining to his local inspection.
He has repeatedly referred in his judgment to a sketch prepared by him. That sketch does not appear to have been put into evidence at all; but the learned Magistrate has not hesitated to make liberal use of that sketch. It does not appear to have been in the mind of the learned Magistrate that the local inspection should have been confined only to the purpose of properly appreciating the evidence on record.

What Section 539-B contemplates is the local inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose of properly appreciating the evidence which was already on record.

[Source: State of Uttar Pradesh v. Het Ram and Ors. AIR 1976 SC 2124]

Normally a Court is not entitled to make a local inspection and even if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. In the present case the Sessions Judge by making a local inspection converted himself into a witness in order to draw full support to the defence case by what he may have seen. By doing so the Sessions Judge exceeded his jurisdiction.

[Source: Keisam Kumar Singh and Anr. v. State of Manipur ]

…the local inspection envisaged under Section 310 Cr.P.C. is for the purpose of properly appreciating the evidence already recorded during the trial. Memorandum of spot inspection recorded by the trial Judge has to be appreciated in conjunction with the evidence already recorded. Any omission and/or commission in the memorandum recorded by the trial Judge by itself would not constitute material irregularity, which would vitiate the prosecution case.

[Source: State of H.P. v. Mast Ram (Supreme Court of India)]

The Magistrate has power to conduct a local inspection that can only be for the purpose of appreciating the evidence on record and that shall not be done in a manner so as to reduce the Magistrate as a witness.

[Source: Sr. Abaya vs Unknown,  2006 CriLJ 3843, 2006 (2) KLT 1001 Ker.]