Judgment of the above noted case bearing Appeal (civil) No. 5645 OF 2008 arising out of SLP(C) No. 3459 of 2007 was delivered by the bench of Supreme Court of India comprising of Mr. Tarun Chatterjee J. and Mr. Lokeshwar Singh Panta J. on September 15, 2008.
This appeal was directed against the judgment and final order dated 26th of October, 2006 of the High Court of Kerala at Ernakulam in AR No 18 of 2006 whereby, the High Court had allowed the prayer for appointment of the arbitrator at the instance of the respondents and directed the parties to submit their disputes to arbitration. The question to be decided in this case was: i) whether the levy of liquidated damages under clause 16.2 of the tender document is an "excepted matter" in terms of clause 20.1 of the said document so that the same cannot be referred to arbitration or looked into by the arbitrator. And ii) whether clause 62 of the special conditions of the tender document will prevail over clause 16.2 of the general conditions of the contract.
The Supreme Court observed that High Court had pointed out correctly that the authority of the purchaser (BSNL) to quantify the Liquidated Damages payable by the supplier Motorolla arises once it is found that the supplier is liable to pay the damages claimed. The decision contemplated under clause 16.2 of the agreement was the decision regarding the quantification of the Liquidated Damages and not any decision regarding the fixing of the liability of the supplier. Pursuant to section 4 of the Arbitration and Conciliation Act, 1996, a party who knows that a requirement under the arbitration agreement has not been complied with and still proceeds with the arbitration without raising an objection, as soon as possible, waives their right to object. Clause 62 referring to special clauses had an overriding effect on Clause 16.2, cannot be accepted. There was in fact no conflict between clause 62 and 16.2. Clause 62 had two parts in it. One part referring to the Liquidated damages and the other part refers to incentives in case the respondent/Motorola performs its part of the contract within time. The part dealing with Liquidated Damages under clause 62 in fact refers it back to clause 16.2 dealing with the quantification of Liquidated Damages. So it was apparent that there was no dispute between clause 62 and clause 16.2.
The Appeal therefore was dismissed.
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Tuesday, September 16, 2008
Wednesday, July 23, 2008
Radhe vs. State of Chhattisgarh
Judgment of the above noted case bearing Criminal Appeal No. 999 of 2008 arising out of SLP (Crl) No. 3018 of 2007 was delivered by the bench of Supreme Court of India comprising of Mr. Arijit Pasayat J. and Mr. P. Sathasivam J. on July 7, 2008.
The significant question of law involved in this case was whether mere a quarrel wherein accused persons sustain injuries may confer a right of private defence extending to the extent of causing death.
The court again observed that plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 IPC deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, or in case of offences in relation to property like theft, robbery, mischief or criminal trespass, and attempts at such offences. The right given under Sections 96 to 98 and 100 to 106 IPC is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there must be circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat; not necessarily commission of offence but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body or property continues. Merely because there was a quarrel and accused persons claimed to have sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary.
In the case under consideration no evidence much less cogent and credible was adduced in this regard. Hence, the right of private defence as claimed by the accused has been discarded. It was noted that in the instant case the appellant had chopped both legs of the deceased in a brutal manner and with the weapon caused other injuries on the body of the deceased.
Under the circumstances, appeal was not allowed.
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The significant question of law involved in this case was whether mere a quarrel wherein accused persons sustain injuries may confer a right of private defence extending to the extent of causing death.
The court again observed that plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 IPC deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, or in case of offences in relation to property like theft, robbery, mischief or criminal trespass, and attempts at such offences. The right given under Sections 96 to 98 and 100 to 106 IPC is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there must be circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat; not necessarily commission of offence but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body or property continues. Merely because there was a quarrel and accused persons claimed to have sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary.
In the case under consideration no evidence much less cogent and credible was adduced in this regard. Hence, the right of private defence as claimed by the accused has been discarded. It was noted that in the instant case the appellant had chopped both legs of the deceased in a brutal manner and with the weapon caused other injuries on the body of the deceased.
Under the circumstances, appeal was not allowed.
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Monday, May 19, 2008
Oriental Insurance Co. Ltd Vs. Sudhakaran K.V. & Ors. - Pillion Rider Case
Judgment of the above noted case bearing Appeal (civil) No. 3634 of 2008 was delivered by the bench of Supreme Court of India comprising of Mr. S. B. Sinha J. and Mr. Lokeshwar Singh Panta J. on May 16, 2008.
The significant question in law involved in the case was whether pillion rider would come within the coverage of the third party insurance policy (Act policy mandatory under Motor Vehicle Act)?
The appeal in question was directed against a judgment and order dated 22.3.2006 passed by the High Court of Kerala at Ernakulam in M.F.A. No. 536 of 1999 whereby the appeal preferred by the appellant from the judgment and award dated 31.10.1998 passed by the Motor Accident Claims Tribunal, Perumbavoor awarding a sum of Rs.1,18,900/-(Rupees One lakh eighteen thousand and nine hundred only) together with interest thereon at the rate of 12% p.a. from the date of the filing of the claim petition till date of realization of the amount against the appellant as also against the owners of the vehicle was dismissed.
The court observed that in terms of Section 147 of the Motor Vehicle Act only in regard to reimbursement of the claim to a third party, a contract of insurance must be taken by the owners of the vehicle. It is imperative in nature. When, however, an owner of a vehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. The liability of the insurer to reimburse the owner in respect of a claim made by the third party, thus, is statutory whereas other claims are not.
The court further relied on New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223, in which it was categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Motor Vehicle Act.
The court also relied on United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. [(2006) 4 SCC 404], whereby the above principle was extended to all other categories of vehicles also, stating as under:
"In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger."
After considering the law as emerging from the various decisions, the court held that:
(i) the liability of the insurance company in a case of third party insurance is not extended to a pillion rider of the motor vehicle unless the requisite amount of additional premium is paid for covering his/her risk.
(ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider.
(iii) the pillion rider in a two wheeler can not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.
Accordingly, appeal was allowed.
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The significant question in law involved in the case was whether pillion rider would come within the coverage of the third party insurance policy (Act policy mandatory under Motor Vehicle Act)?
The appeal in question was directed against a judgment and order dated 22.3.2006 passed by the High Court of Kerala at Ernakulam in M.F.A. No. 536 of 1999 whereby the appeal preferred by the appellant from the judgment and award dated 31.10.1998 passed by the Motor Accident Claims Tribunal, Perumbavoor awarding a sum of Rs.1,18,900/-(Rupees One lakh eighteen thousand and nine hundred only) together with interest thereon at the rate of 12% p.a. from the date of the filing of the claim petition till date of realization of the amount against the appellant as also against the owners of the vehicle was dismissed.
The court observed that in terms of Section 147 of the Motor Vehicle Act only in regard to reimbursement of the claim to a third party, a contract of insurance must be taken by the owners of the vehicle. It is imperative in nature. When, however, an owner of a vehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. The liability of the insurer to reimburse the owner in respect of a claim made by the third party, thus, is statutory whereas other claims are not.
The court further relied on New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223, in which it was categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Motor Vehicle Act.
The court also relied on United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. [(2006) 4 SCC 404], whereby the above principle was extended to all other categories of vehicles also, stating as under:
"In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger."
After considering the law as emerging from the various decisions, the court held that:
(i) the liability of the insurance company in a case of third party insurance is not extended to a pillion rider of the motor vehicle unless the requisite amount of additional premium is paid for covering his/her risk.
(ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider.
(iii) the pillion rider in a two wheeler can not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.
Accordingly, appeal was allowed.
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Thursday, May 15, 2008
DEV DUTT Vs. UNION OF INDIA & ORS - Service Matter
Judgement of the above noted case bearing Appeal (civil) No. 7631 of 2002 was delivered by the bench of Supreme Court of India comprising of Mr. H. K. Sema J. and Mr. Markandey Katju J. on May 12, 2008.
The significant question in law involved in the case was whether non-communication of entry in Annual Confidential Report of a public servant on the pretext of any Government Order or memorandum amounts to arbitrariness and violative of natural justice?
In this case the appellant was in the service of the Border Roads Engineering Service which is governed by the Border Roads Engineering Service Group 'A' Rules, as amended. As per these rules, since the appellant was promoted as Executive Engineer on 22.2.1988, he was eligible to be considered for promotion to the post of Superintending Engineer on completion of 5 years on the grade of Executive Engineer, which he completed on 21.2.1993. Accordingly the name of the appellant was included in the list of candidates eligible for promotion. The Departmental Promotion Committee (DPC) held its meeting on 16.12.1994. In that meeting the appellant was not held to be eligible for promotion, but his juniors were selected and promoted to the rank of Superintending Engineer. It is because as per guidelines for promotion of departmental candidates which was issued by the Government of India, Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989, only those candidates who had 'very good' entries in their Annual Confidential Reports (ACRs) for the last five years would be considered for promotion, but the appellant did not have 'very good' entry and only 'good' entry for the year 1993-94.
The grievance of the appellant was that he was not communicated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was allowed he would have also become eligible for promotion. Hence he submitted that the rules of natural justice have been violated.
The court relied on Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 in which arbitrariness in any form was held to be violative of Article 14 of the Constitution. Further the Court observed that the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC 7. Hence, non-communication of entry in Annual Confidential Report amounts to arbitrariness.
The court further emphasized on rule of Natural Justice as held in A. K. Kraipak & Ors. vs. Union of India & Ors. AIR 1970 SC 150. In that case it was held:
"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice".
Accordingly Court developed the principles of natural justice in case under consideration by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. It was further held that above position would be correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution. Article 14 will override all rules or government orders.
Accordingly, appeal was allowed.
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The significant question in law involved in the case was whether non-communication of entry in Annual Confidential Report of a public servant on the pretext of any Government Order or memorandum amounts to arbitrariness and violative of natural justice?
In this case the appellant was in the service of the Border Roads Engineering Service which is governed by the Border Roads Engineering Service Group 'A' Rules, as amended. As per these rules, since the appellant was promoted as Executive Engineer on 22.2.1988, he was eligible to be considered for promotion to the post of Superintending Engineer on completion of 5 years on the grade of Executive Engineer, which he completed on 21.2.1993. Accordingly the name of the appellant was included in the list of candidates eligible for promotion. The Departmental Promotion Committee (DPC) held its meeting on 16.12.1994. In that meeting the appellant was not held to be eligible for promotion, but his juniors were selected and promoted to the rank of Superintending Engineer. It is because as per guidelines for promotion of departmental candidates which was issued by the Government of India, Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989, only those candidates who had 'very good' entries in their Annual Confidential Reports (ACRs) for the last five years would be considered for promotion, but the appellant did not have 'very good' entry and only 'good' entry for the year 1993-94.
The grievance of the appellant was that he was not communicated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was allowed he would have also become eligible for promotion. Hence he submitted that the rules of natural justice have been violated.
The court relied on Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 in which arbitrariness in any form was held to be violative of Article 14 of the Constitution. Further the Court observed that the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC 7. Hence, non-communication of entry in Annual Confidential Report amounts to arbitrariness.
The court further emphasized on rule of Natural Justice as held in A. K. Kraipak & Ors. vs. Union of India & Ors. AIR 1970 SC 150. In that case it was held:
"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice".
Accordingly Court developed the principles of natural justice in case under consideration by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. It was further held that above position would be correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution. Article 14 will override all rules or government orders.
Accordingly, appeal was allowed.
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Thursday, April 24, 2008
Satyawati Sharma (Dead) by LRs Vs. Uninon of India & Anr.
Judgement of the above noted case bearing Appeal (civil) No. 1897 of 2003 was delivered by the bench of Supreme Court of India comprising of Mr. B. N. Agrawal J. & Mr. G.S. Singhvi J. on April 16, 2008.
The significant question in law involved in the case was whether Section 14(1)(e) of the The Rent Control Act, 1958 is violative of the doctrine of equality embodied in Article 14 of the Constitution of India?
Held, Section 14(1)(e) of The Rent Control Act, 1958 is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only. The court however clarified that the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it was neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and court felt that ends of justice can be met by striking down the discriminatory portion of Section 14(1)(e).
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The significant question in law involved in the case was whether Section 14(1)(e) of the The Rent Control Act, 1958 is violative of the doctrine of equality embodied in Article 14 of the Constitution of India?
Held, Section 14(1)(e) of The Rent Control Act, 1958 is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only. The court however clarified that the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it was neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and court felt that ends of justice can be met by striking down the discriminatory portion of Section 14(1)(e).
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