SUPREME COURT

• CONSUMER

Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors (Decided on 10.02.2010) MANU/SC/0098/2010

Consumer - Medical Negligence -Deficiency in service - Alleged negligence by Doctor - Complaint thereof - Section 21 of the Consumer Protection Act, 1986 - Appellants filed a complaint claiming compensation attributing deficiency in services and medical negligence in the treatment of the deceased husband of appellant - Whether accused medical professional liable to be prosecuted?

Held, A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. In the present case, appellants have failed to make out any case of medical negligence against the respondents

• FAMILY

Manisha Tyagi v. Deepak Kumar (Decided on 10.02.2010) MANU/SC/0101/2010

Family - Judicial Separation - Grant of Judicial Separation by Trial Court and confirmation by Appellate Court - Appeal against same by Appellant-wife - Grant of divorce by High Court during period of judicial separation - Effect thereof - Whether High Court should have granted decree of divorce during period of judicial separation ?

Held, the High Court erred in granting a decree of divorce to the husband. The wife had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact. The effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of judicial separation has been allowed. Both the parties had failed to make out a case of divorce against each other. The husband had accepted these findings. Therefore he was quite content to wait for the statutory period to lapse before filing the petition for divorce, which he actually did on 9.5.2002. On the basis of the proven facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High court found both the parties to be at fault. Hence the middle path of judicial separation had been accepted. Therefore, it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the court below which had resulted in miscarriage of justice. There was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband.

• DIRECT TAXATION

Dynamic Orthopedics Pvt. Ltd. v. Commissioner of Income Tax, Cochin, Kerala (Decided on 16.02.2010) MANU/SC/0109/2010

Direct Taxation - Ascertainment of depreciation - Special provisions relating to certain companies - Minimum Alternate Tax on Zero Tax Companies - Parts II and III of Schedule VI to Companies Act, 1956 and section 115J of Income Tax Act, 1961 - Whether the Income Tax Appellate Tribunal was justified in upholding the order of the Commissioner of Income Tax (Appeals) directing the Assessing Officer to allow the claim of depreciation as per the Income Tax Rules, 1962, for the purposes of computing the book profit under Section 115J of the Income Tax Act, 1961?

Held, Chapter XII-B of the Act containing "Special provisions relating to certain Companies" was introduced in the Income Tax Act, 1961, by the Finance Act, 1987, with effect from 1st April, 1988. In fact, Section 115J replaced Section 80VVA of the Act. Section 115J [as it stood at the relevant time], inter alia, provided that where the total income of a company, as computed under the Act in respect of any accounting year, was less than thirty per cent of its book profit, as defined in the Explanation, the total income of the company, chargeable to tax, shall be deemed to be an amount equal to thirty per cent of such book profit. The whole purpose of Section 115J of the Act, therefore, was to take care of the phenomenon of prosperous `zero tax' Companies not paying taxes though they continued to earn profits and declare dividends. Therefore, a Minimum Alternate Tax was sought to be imposed on `zero tax' Companies. Section 115J of the Act imposes tax on a deemed income. Section 115J of the Act is a special provision relating only to certain Companies. The said section does not make any distinction between public and private limited companies. In our view, Section 115J of the Act legislatively only incorporates provisions of Parts II and III of Schedule VI to 1956 Act. Such incorporation is by a deeming fiction. Hence, we need to read Section 115J(1A) of the Act in the strict sense. If we so read, it is clear that, by legislative incorporation, only Parts II and III of Schedule VI to 1956 Act have been incorporated legislatively into Section 115J of the Act. Therefore, the question of applicability of Parts II and III of Schedule VI to 1956 Act does not arise. If a Company is a MAT Company, then be it a private limited company or a public limited company, for the purposes of Section 115J of the Act, the assessee-Company has to prepare its profit and loss account in accordance with Parts II and III of Schedule VI to 1956 Act alone.

HIGH COURT

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Vardhman Properties Ltd. CA+ v. Vardhman Developers and Infrastructures (Decided on 14.01.2010) MANU/DE/0123/2010

Intellectual Property Rights - Trademark - Infringement thereof through use - Section 29(5) of Trademarks Act - Plaintiff filed suit claiming permanent injunction to restrain the defendant from using its name and trademark "VARDHAMAN GROUP" and "VARDHAMAN" - Whether Plaintiff entitled to relief

Held, the essential condition for trademark infringement through use by the alleged infringer, of a trade-name or corporate name or part of it is that he or his business concern should deal in goods or services "in respect of which trademark is registered". The plaintiff has, in this Court's opinion, prima facie established long usage, at least since 1998-99, till date, of the mark and the corporate name. The defendant does not dispute that the plaintiff was incorporated in 1986 or that it is engaged in an identical business activity, i.e. building and construction business. In these circumstances, when both the parties are engaged in the same trade, the likelihood of confusion is not only great but logical and natural. Application for injunction allowed.

Intellectual Property Rights - Trademark - Infringement thereof - Relief of injunction - Challenge thereto - Non-disclosure of material facts - Defendant contended that Plaintiff is disentitled to injunctive relief on account of non-disclosure of material facts pertaining to the previous suit and subsisting injunction granted by the Court, in it.

Held, while there can be no dispute about the proposition that a litigant who approaches the Court for equitable relief has to do so with clean hands, at the stage where the Court is examining where the plaintiff is a registered trade mark proprietor - as in this case, the alleged non-disclosure is not as material, considering the overall circumstances of the case.

Intellectual Property Rights - Trademark - Infringement thereof - Relief of injunction - Challenge thereto -Plea of Acquisence - Defendant challenged Plaintiff's prayer for relief on ground that Plaintiff has acquiesced the impugned trademark.

Held, Acquisence would classically arise where the registered proprietor knows his rights and also knows that the infringer is ignorant of them and does something to encourage infringer's misapprehension with the result that infringement continues upon such mistaken belief and the infringer worsens his position. However, in this case, the defendant is not urging lack of knowledge of plaintiff's mark; rather what is put forward is that it continued to advertise despite the plaintiff's statutory rights. Acquiescence prima facie does not arise in such situation because there is nothing showing the plaintiff's action, overt or otherwise encouraging defendant to continue using the mark.

• TRUSTS AND SOCIETIES

BOMBAY HIGH COURT

Maharashtra Shetkari Seva Mandal v. Bhaurao Bayaji Garud Decided on 04.02.2010 (MANU/MH/0079/2010)

Trusts and Societies - Suit by or against or relating to public trusts or trustees or others - Consent of Charity Commissioner for institution of suit - Requirement thereof - Section 50 and Section 51 of Bombay Public Trust Act - Trial Court allowed regular suit filed by Plaintiff-Respondent for declaration of title of suit property and injunction against Defendant-Applicant Trust - Applicant-Defendant challenged same on ground that suit was not maintainable as Civil Court had no jurisdiction to entertain the suit against Public Trust and that no permission of Charity Commissioner was sought before institution of suit - Hence, present application - Whether permission of Charity Commissioner was required before institution of present suit?

Held, permission of the Charity Commissioner would be required when a suit is instituted by "a person having interest" for a Decree in terms of the reliefs delineated in Section 50. In the present case, the declaration and injunction sought by the Plaintiff relate to his contention about his title to the suit property. Apart from this the Plaintiff is not "a person having interest" as defined under Section 2(10) of the Act. Therefore, consent of the Charity Commissioner not required prior to institution of such a suit. Civil Revision Application dismissed.

• MOTOR VEHICLES

CALCUTTA HIGH COURT

Anamika Mondal v. United India Insurance Co. Ltd. and Anr (Decided on 06.03.2009) MANU/WB/0319/2009

Motor Vehicles - Motor Vehicle Accident Claim - Award of Damages - Challenge thereto - Prayer for enhancement of compensation on ground of disability - Appellant-Claimant sought enhancement of damages awarded by Tribunal in motor vehicle accident claim on ground of disability - Whether Appellant-Claimant entitled to enhancement of compensation ?

Held, the permanent disability of the appellant to the extent of 50 per cent has not been disbelieved by the Tribunal and the insurance company has not adduced any evidence to disprove the medical certificate. Court, therefore, enhance the compensation by a further sum of Rs. 2,70,000, out of which Rs. 2,50,000 is earmarked as one time payment for meeting the future nursing and conveyance charges the appellant will be required to meet for the whole of her life and a further sum of Rs. 60,000 in addition to Rs. 40,000 granted by the Tribunal below towards 'pain and suffering' after taking into consideration the fact from the young age of 28 years the victim had to be dependent upon others for performing every type of manual work and that she is even unable to perform her marital obligations towards her husband. Appeal allowed.

• CRIMINAL

JHARKHAND AT RANCHI HIGH COURT

Uma Shanker Singh and Ors. v. State of Jharkhand and Anr (Decided on 19.01.2010) MANU/JH/0034/2010

Criminal - Application for quashing of criminal proceeding - Section 482 CrPC - Petitioners, who have been made accused, filed application under Section 482 Cr.P.C. for quashing the entire criminal proceeding on ground that the petitioners against whom prosecution has been initiated are not directly involved in the commission of offence, inasmuch some of them have retired from service and that the alleged offence was not committed during the tenure of these Petitioners in service.

Held, the question, therefore, that falls, for consideration is whether the petitioners against whom prosecution has been initiated are directly involved in the commission of offence, inasmuch some of them have retired from service and it is alleged that the offence was not committed during the tenure of these petitioners. Court opined that, all these things cannot be considered in an application under Section 482 of the Code of Criminal Procedure. The appropriate stage to consider the ground raised by the petitioners is at the time of framing of charge. Having regard to the fact that there is truth in the allegations made in the prosecution report, the criminal proceeding and the order of cognizance cannot be quashed. Therefore, application dismissed.

PUNJAB HIGH COURT

Mukesh Kumar v. Punjab State Electricity Board (Decided on 11.01.2010) MANU/PH/0007/2010

Criminal - Quashing of Complaint - Section 482 of the Code of Criminal Procedure, 1973 - Complaint under Section 138 of the Negotiable Instruments Act, 1881 against the Petitioner who only gave the assurance that cheques signed by other person, will be honored on presentation - Whether impugned complaint against petitioner is maintainable

Held, as per Section 138 of the Act, the cheques should have been issued by the accused in discharge of some legal liability and Cheques in dispute were not issued by the Petitioner, and the only allegation against him was that he had allegedly assured that the cheques on presentation will be honoured. Offence under Section 138 is made out only against the drawer of the cheque and not any other person. The Petitioner in the instant case being not a drawer or signatory of the cheques in dispute cannot be held liable for conviction under Section 138 of the Act. 

• SERVICE TAX

PUNJAB HIGH COURT

Commissioner of Central Excise v. Vahoo Colour Lab. (Decided on 03.02.2010) MANU/PH/0011/2010

Service Tax - Photography, developing and printing - Whether Assessee liable to pay the Service Tax on the value of goods/material consumed, during the course of processing of photography or not

Held, undisputedly, processing of photography cannot be completed without the developing and printing process so as to provide the service to the recipient, accordingly, photography films, printing papers, chemicals and envelopes are the integral and essential ingredients to complete the process of photography. Thus, the components of sale of photography, developing and printing etc. clearly distinct and discernible than that of photography service. As the photography is in the nature of works contract involving the elements of both sale and service, the service tax is not leviable on the sale portion.