SUPREME COURT

• MOTOR VEHICLES LAWS

Syed Basheer Ahamed and Ors. Vs. Mohd. Jameel and Anr. (Decided on 06.01.2009) MANU/SC/0006/2009

Determination of compensation claim under the Motor Vehicles Act

section 168 of the Act enjoins the Tribunal to make an award determining "the amount of compensation which appears to be just". Expression "which appears to the just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Although the Act a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. In the matter of computation of compensation, there is no uniform rule or formula for measuring the value of a human life. Though a special provision for assessment of compensation on structured formula basis for the purpose of a claim petition under Section 163A of the Act has been inserted but no such formula has been laid down for determination of compensation in a claim petition under Section 166 of the Act though there is no bar in taking the said schedule as a guiding factor while determining the just compensation by applying multiplier method. To arrive at just compensation, it is necessary to ascertain the net income of the deceased available for the support of himself and his dependents at the time of his death and the amount, which he was accustomed to spend upon himself.

• PROPERTY LAWS

Baljit Singh vs. Improvement Trust Ludhiana and Anr. (Decided on 06.01.2009) MANU/SC/0005/2009

Right to continue with allotment - Whether a person who is a transferee of a plot of land allotted to the transferor by the Improvement Trust, Ludhiana, claim right to continue with such allotment even after the same gets cancelled - Right to be further determined when the transfer was effected with the approval of the Trust

Plea raised by Appellant in the instant case was not accepted. Notwithstanding the fact that the transfer of the plot in favour of the Appellant was duly approved by the Trust, the Appellant did not acquire any independent right in the plot and he only acquired whatever rights the transferor or the original allottee had therein. Since the transfer was effected in the Appellant's favour with the approval of the Trust before the allotment was cancelled, the Appellant's case could have been treated differently in the special facts thereof - Appeal accordingly disposed of with direction to the Chairman to reconsider the case of the Appellant in the light of the submissions made on his behalf that he was willing to pay such additional amount as may be levied for a fresh allotment of the plot in question in his favour.

• CONSTITUTIONAL LAWS

Citizens for Justice and Peace Vs. State of Gujarat and Ors. (Decided on 13.01.2009) MANU/SC/0018/2009

Appointment of a Government Servant - Whether doctrine of judicial review can be extended to such sensitive appointment - Petition under Article 32 of the Constitution of India, 1950 was filed whereby appointment and continuation of Respondent No. 3 Shri P.C. Pandey to the post of Director General of Police, State of Gujarat was challenged - Petition also sought direction to be given to State of Gujarat to take disciplinary action including prosecution of Respondent No. 3 for having failed in his duties during the Gujarat carnage of 2002

Appointment of Government Servant is a prerogative of the particular Government, particularly, when it is a sensitive appointment of Director General of Police. Doctrine of `judicial review' cannot be extended to upset an appointment in the factual panorama of the instant case. Further it is for the State Government to decide on whether any disciplinary action against Shri Pandey is to be taken or not.

• ARBITRATION

Om Construction Co. vs. Ahmedabad Municipal Corp. and Anr. (Decided on 13.01.2009) MANU/SC/0017/2009

Whether in the absence of a Notification in the Official Gazette, the Municipal Corporation can at all be considered as a Public Authority for the purpose of Section 2(1)(k) of the Gujarat Tribunal Act, 1992 - Whether the absence of a procedure for appointment of an Arbitrator in the Arbitration Agreement itself, would constitute a bar for the appointment of an Arbitrator under Section 11(6) or any other provision of the 1996 Act, when not only the parties to these proceedings, but the High Court as well, had arrived at a conclusion that the provisions of the Gujarat Tribunal Act, 1992, would not be applicable in the instant case

There is no dispute that the Ahmedabad Municipal Corporation is a local authority and it could assume the garb of a "Public Undertaking" only pursuant to a Notification published in that regard in the Official Gazette. Since the parties have agreed to resolve their disputes by arbitration, the provisions of Sub-section (5) of the 1996 Act can be pressed into service to enable the parties to invoke the powers of the Chief Justice to appoint an Arbitrator.

Section 11 of the 1996 Act deals exclusively with the appointment of Arbitrators. Sub-section (2) provides that the parties are free to agree on a procedure for appointing the Arbitrator or Arbitrators but subject to Sub-section (6) which provides that if an agreed procedure had not been acted upon, the parties could approach the Chief Justice or his Designate for appointment of an Arbitrator. Sub-sections (3), (4) and (5) contemplate different situations in which the Chief Justice or his Designate could be requested to appoint an Arbitrator. In view of the facts of the instant case, the answer to the question thrown up in this appeal lies in Sub-clause (5) of Section 11 of the 1996 Act, which says that failing any agreement referred to in Sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

• CRIMINAL LAWS

Buddu Khan Vs. State of Uttarakhand (Decided on 12.01.2009) MANU/SC/0022/2009

Determination of applicability of Exception 4 to section 300 IPC

In order to bring into operation Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons.

• CIVIL LAWS

Ashok Kumar Mittal Vs. Ram Kumar Gupta and Anr. (Decided On 09.01.2009) MANU/SC/0020/2009

Imposition of cost - Effect of Sections 35 or 35A of the Code of Civil Procedure, 1908

Under Section 35 of the Code, award of costs is discretionary but subject to the conditions and limitations as may be prescribed and the provisions of any law for the time being in force. Under Section 35A, compensatory costs for vexatious claims and defences may not exceed to Rs. 3,000/-. Further the primary object of levying costs under Sections 35 and 35A CBC, is to recompense a litigant for the expense incurred by him in litigation to vindicate or defend his right. It is therefore payable by a losing litigant to his successful opponent. When an Appellant or a Plaintiff has already paid the prescribed court fee in regard to the appeal or suit, to the state at the time of institution, it is debatable whether any costs can be awarded to the state by way of penalty, in a litigation between two private parties. Courts will have to act with care while, opening new frontiers.

One view has been that the provisions of Sections 35 and 35A CPC do not in any way affect the wide discretion vested in by High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. The more sound view however is that though award of costs is within the discretion of the court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by Sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code.

HIGH COURT

• CIVIL

ANDHRA PRADESH HIGH COURT

The Housing Board Employees, IV Phase, Plot Allottes Welfare Association rep. by its President Ravula Chalapathi Reddy S/o Venkata Narasimha Redy, Assistant Engineer, A.P. Housing Board Vs. The State of Andhra Pradesh rep. by its Principal Secretary, Housing Department and two Ors. (Decided on 30.12.2008) MANU/AP/0706/2008.

Petitioners are the members of the A.P. Housing Board Employees Phase-IV plot allottees Welfare Association - Members of the Association are the employees of the A.P. Housing Board and they are allotted plots in phase-IV of the lay out at Kukatpally by the Government - However Principal Secretary to Government, without considering that the allotment was made in the year 1991, raised an objection on the ground that the present market value is at Rs. 3,000/- per square yard, whereas the allotment was made at Rs. 116/- per square yard. It was also mentioned that the land allotted was not suitable even for residential purpose - Contention of the petitioner is that the action of the Government in cancelling the earlier G.O. is arbitrary and in violation of Article 14 of the Constitution of India - Doctrine of legitimate expectation or promissory estoppel - Whether it loses significance in case of Governmental actions.

Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest, which has to prevail over private interest. The doctrine of promissory estoppel applies also against the Government. It is no defence for the Government to say that because of executive necessity, it need not keep up its promise.

Whether claim based on merely legitimate expectation without anything more can ipso facto give a right.

For legal purposes, expectation is not the same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself by a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process.

• INSURANCE

GUJARAT HIGH COURT

National Insurance Co. Ltd. Vs. Jashuben Balabhai Koli (Vaghani) and Anr. (Decided on 22.12.2008 ) MANU/GJ/0814/2008

Deceased was travelling as a pillion rider on a scooter and fell down from vehicle and succumbed to injuries The contention is raised by insurance company that the deceased being a pillion rider, insurance policy did not cover risk of injury or death of such a passenger and, thus, it was not liable to reimburse to owner of scooter. Whether a pillion rider is covered by the contract of insurance between owner and the vehicle.

Herein Apex Court has come to conclusion that contract of insurance was 'a policy for act liability' between owner and the vehicle i.e. between only the insured and insurer.

• COMPANY

BOMBAY HIGH COURT

Western Coalfields Ltd. through the Chief General Manager Vs. The State of Maharashtra through the Secretary Revenue and Forest Department and Tahsildar (Decided on 05.01.2009) MANU/MH/0012/2009

Effect of Deeming Fiction - Whether State Government can levy and demand any sum as amount of non - agricultural assessment from Petitioner Company on the ground that the lands though have been transferred to WCL but then as absolute right to deal with or alienate these lands is not conferred upon W.C.L., and it is not the owner and Central Government continues to be the absolute owner.

In the petition there is no specific assertion that WCL is lessee in relation to a particular land for which non-agricultural tax demand has been made from it. Details or copy of lease agreement in relation to lands forming subject matter of recovery are not produced before this Court. Grounds in Writ Petitions show only a contention that lease agreements existed between earlier owners of Coal mines and State Government before nationalization. Held, State Government cannot demand any land revenue in relation there to.

• FAMILY

BOMBAY HIGH COURT

Shankarlal Ramprasad Ladha died L.Rs. (Chandrabhaga Shankarlal Laddha and Ors.) Vs. Vasant Chandidasrao Deshmukh, Renukadas Chandidasrao Deshmukh, Sulochanabai W/o Chandidasrao Deshmukh and Laxmikant Chandidasrao Deshmukh (Decided on 07.01.2009) MANU/MH/0005/2009

Respondent Nos. 1 to 3/plaintiffs and the Respondent No. 4 became owners of the suit house after death of Chandidasrao Deshmukh, being his legal heirs - They went to Nanded for educational purpose of the Respondent Nos. l and 2 - Respondent No. 4 alone use to manage the agricultural lands and the house properties - Ancestral properties were partitioned hownever the suit house was kept undivided - Respondent No. 4 agreed to distribute the rent of the houses and give them due share - Respondent No. 4 alienated the suit houses by virtue of sale deeds dated 25.2.1963 and 14.8.1963, respectively, without their consent - Issue is whether the sale transactions are binding on their rights. and challenges the judgment rendered by learned District Judge, Parbhani, in this appeal.

Held the first appellate Court committed patent error while interpreting Section 6 of the Hindu Succession Act and treating the Respondent Nos. l to 4 as tenants in common. Also the sale transaction of the house property No. H-207 is not proved to be for the purpose of legal necessity nor it could be for the benefit of the estate of the joint family. Hence, part of the impugned decree granted by the first appellate Court is improper and incorrect. The Respondent Nos. 1 to 3 will be entitled to 3/4th share by way of partition of the house property and the 1/4th share to Respondent No. 4

• INTELLECTUAL PROPERTY RIGHTS

BOMBAY HIGH COURT

Goldgem Overseas Vs. Flawless Diamond (India) Ltd. (Decided on 07.01.2009) MANU/MH/0009/2009

Plaintiff has sued the Defendant upon for infringement of his registered trademark "AUM" and for the act of passing off the said mark - Both the parties are in the business inter alia of diamond jewellery - Both claim to use the trademark "AUM" in their products. Whether the contention of the Defendant that the mark contains a generic expression equivalent to term "God" which is incapable of registration as a Trademark can be taken into consideration.

Held that stage has long passed. When both the parties have sought to register the mark and it does not allow for the Defendant to contend that he should not have registered what he proceeded to do.

Parameters to be adopted by court.

Held in an infringement action, Court more concerned with the confusion that would be caused in the minds of the purchasers to mistake the products of one for that of another. It is that confusion which must be avoided by the Court. It may be mentioned that though this is an action in passing off also,the main basis of the Plaintiff's claim is upon infringement of a registered trademark. The two marks are unmistakably similar. Defendant not to use the mark "AUM" or any other deceptively similar mark, name, word or style as a part of the Defendant's jewellery products.

The parameters to be considered by the Court are simple once the imitation of the mark is seen . In this case the essential features of the Plaintiff's mark are the letters "AUM" which are adopted by the Defendant . The further artistics and visuals in the Defendant's trademark is of no consequence. There is no such distinction between the two marks made out by the added matter as would be so frequently different as to distinguish the Plaintiff's goods from that of the Defendant s. In fact the marks are identical, except for a different font visually. Even in another script they are identical phonetically.