Radhakrishna and another Vs Gokul and others on 31 October, 2013

Posted on July 12, 2018 by ShadesOfKnife

This is a landmark judgment where in Hon’ble Supreme Court has held out the settle principles in dealing with compensation paid in case of accidental deaths.

In Sarla Verma v. D.T.C. (2009) 6 SCC 121, a two-Judge Bench of this Court took cognizance of the lack of uniformity and consistency in awarding compensation to the victims of accidents caused by motor vehicles, referred to the judgments in U.P.S.R.T.C. v. Trilok Chandra (1996) 4 SCC 362, G.M., Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 and made the following observations:

To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1 (Ascertaining the multiplicand)
The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased
Step 3 (Actual calculation)
The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency” to the family.
Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.

From Paras 15 and 16,

In the result, the appeal is partly allowed. The impugned judgment is modified and it is declared that the appellants shall be entitled to compensation of Rs.7,00,000 with interest at the rate of 6% per annum on the enhanced amount with effect from the date of filing petition under Section 166 of the Act.
Respondent No.3 is directed to pay the amount of enhanced compensation and interest within a period of three months by getting prepared two demand drafts of equal amount in the names of appellant Nos.1 and 2. It will be open to respondent No.3 to recover from respondent Nos.1 and 2 their respective shares of the compensation.

Here Respondent No.3 is the insurance company. 🙂

Radhakrishna and another Vs Gokul and others on 31 October, 2013

Parimal Vs Veena @ Bharti on 8 February, 2011

Posted on July 10, 2018 by ShadesOfKnife

Case details:

Marriage: 9.12.1986
Husband filed a case for divorce on 27.4.1989
Wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989.
Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it
Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server
The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice.
Under the Court’s orders, summons were affixed at the house of the respondent/wife, but she chose not to appear.
She was served through public notice on 6.11.1989 published in the newspaper ‘National Herald’ which was sent to her address, 3/47, First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the respondent/wife in any manner.
After service vide publication dated 8.11.1989 as well as by affixation, respondent/wife was proceeded ex- parte in the divorce proceedings.
Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.
Two years after the passing of the decree of divorce, on 16.10.1991, the appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.

The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said application under Order IX, Rule 13 CPC was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.

Hon’ble Supreme Court has elaborated on the principle of “Sufficient Cause” Vs “Good Cause”. This is a vital piece of check the Hon’ble courts should do to ensure there was sufficient cause for the person who was to be present in Court on receiving Court summons/Notice.

From Para 9,

In this context, “sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.

From Para 10,

The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”.

From Para 12,

In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.

The following ingredients are necessary to constitute bigamy:

(1) the accused must have contracted first marriage;
(2) he must have married again;
(3) the first marriage is subsisting at the time of the second marriage and
(4) the spouse must be living.

Parimal Vs Veena @ Bharti on 8 February, 2011

Arjun Singh Vs Mohindra Kumar & Ors on 13 December, 1963

Posted on July 10, 2018 by ShadesOfKnife

The Hon’ble Apex Court has explained the following in this landmark judgment

‘principle of res judicata’
difference between words “good cause” for nonappearance in O. IX, r. 7 and “sufficient cause” for the same purpose in O. IX, r. 13
‘res judicata’ could be as much applicable to different stages of the same suit as to findings on issues in different suits.
If the entirety of the “hearing” of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit.
ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit:
- (1) Where the hearing is adjourned or
- (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permits judgment to be delivered after an interval after the hearing is completed.

Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963

Avishek Goenka Vs Union Of India & Anr on 27 April, 2012

Posted on July 7, 2018 by ShadesOfKnife

This is the Hon’ble Apex Court order affirming the guidelines of TRAI/DoT in regards to providing of subscriber database, Base Transceiver Station (BTS) location, Call Detail Record (CDR) and Customer Acquisition Form (CAF) to Department of Telecommunication or Designated Security Agencies.

Here is the operative portion from point 11 (ii) which is of interest for us.

In case, CAF of any subscriber is asked by the TERM Cells/ designated Security Agencies, the original/scan copy of CAF & documents shall be furnished within 1 hour. Subscriber data will be provided in 1 hr. BTS Location shall also be provided within 1 hour but not later than 6 Hours. CDRs upto 6 months old shall be provided within 12 hours and CDR more than 6 months old shall be provided within 24 hours.

Avishek Goenka Vs Union Of India & Anr on 27 April, 2012

Vijayan vs Sadanandan K. & Anr on 5 May, 2009

Posted on July 4, 2018 by ShadesOfKnife

This is the super judgment from Justice Altamas Kabir and Justice Cyriac Joseph wherein it was held that while awarding compensation under Section 357(3) Cr.P.C., the Court is within its jurisdiction to add a default sentence of imprisonment.

Vijayan Vs Sadanandan K. & Anr on 5 May, 2009

R. Mohan Vs A.K Vijaya Kumar on 3 July, 2012

Posted on July 4, 2018 by ShadesOfKnife

A wonderful judgment from Hon’ble Supreme Court which held that to make compensation paid to a complainant under 357(3) of CrPC, it is imperative that a Sentence In Default Of Payment Of Compensation is also applied in the order.

R. Mohan Vs A.K Vijaya Kumar on 3 July, 2012

Vinay And Others Vs State Of Karnataka And Another

Posted on July 3, 2018 by ShadesOfKnife

Apex Court has levied fine on assaulters and granted compensation to the Appellants.

Vinay And Others Vs State Of Karnataka And Another on 16 April, 2015

K. Karunakaran Vs T. V. Eachara Warrier on 16 November, 1977

Posted on July 3, 2018 by ShadesOfKnife

In this landmark case that got national coverage, it is held by Hon’ble Apex Court that

The fact that a prima facie case has been made out for laying a complaint does not mean that the charge has been established against a person beyond reasonable doubt. That will be thrashed out in the trial itself where the parties will have opportunity to produce evidence and controvert each other’s case exhaustively without any reservation. There may be often a constraint on the part of a person sought to be proceeded against under section 340 Cr.P.C. to come out with all materials in the preliminary enquiry. That constraint will not be there in a regular trial where he will have ample opportunity to defend himself and produce all materials to show that an offence under section 193 IPC has not been made out. That section contemplates that making of a false statement is not enough. It has to be made intentionally. The accused in a trial under section 193 will be able to place all circumstances bearing upon the ingredient of the intention attributed to him.

K. Karunakaran Vs T. V. Eachara Warrier on 16 November, 1977

Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Hari Kishan & Anr Vs Sukhbir Singh & Ors on 25 August, 1988

Posted on June 30, 2018 by ShadesOfKnife

Hon’ble Supreme Court in this landmark judgment dealt with three questions, namely

(i) whether the respondents are not guilty of the offence under s. 307/149 IPC;
(ii) whether the High Court was justified in extending the benefit of s. 360 Cr.P.C. and releasing the accused on probation of good conduct; and
(iii) whether the compensation awarded to Joginder could be legally sustained, and if so, what should be the proper compensation ?

Let’s concentrate on the question #3

Hon’ble Apex Court has answered the question #3 above in likewise

This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs. 2,500 as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to s. 357 Cr. P.C.
Section 357, leaving aside the unnecessary, provides :
“357. Order to pay compensation :
(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part,the Court may. when passing judgment. order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence. when compensation is in the opinion of the Court, recoverable by such person in a civil Court;
XXXXX XXXXX XXXX
XXXXX XXXXX
XXXXX
(3) When a Court imposes a sentence, of which fine does not not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter. the Court shall take into account any sum paid or recovered as compensation under this section.”

Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case. we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent. a constructive approach to, crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.

Final verdict in regards to this question #3

The compensation awarded by the High Court, in our opinion, appears to be inadequate having regard to the nature of injury suffered by Joginder. We have ascertained the means of accused and their ability to pay further sum to the victim. We are told that they are not unwilling to bear the additional burden. Mr. Lalit learned counsel said that his clients are willing to pay any amount determined by this Court. It is indeed a good gesture on the part of counsel and his clients.
With due regard to all the facts and circumstances of the case, we consider that Rs.50,000 compensation to Joginder would meet the ends of justice. We direct the respondents to pay the balance within two months in equal proportions.

Hari Kishan & Anr Vs Sukhbir Singh & Ors on 25 August, 1988

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Posted on June 25, 2018 by ShadesOfKnife

The Apex Court held as follows in regards to the right or lack thereof of a party to go as in-person in a case in a court. Legendary Judge Krishnaiyer, V.R. has allowed permission to a friend of a Plaintiff, who is not a advocate, to plead his case in court of law.

“1. A private person who is not an Advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, and reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.
2. The Advocates are entitled as of right to practice in this Court under S. 30(1) of the Advocates Act, 1961 subject to the reasonable restriction provided under s. 29 of that Act viz. that the only class of persons entitled to practice the profession of law shall be advocates. Even so, it is open to a party, who is unable for some reason or the other to present his case adequately, to seek the help of another person in his behalf. To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of sophisticated nature…………….
3. A comprehensive programme of free legal services, is in a sense,a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties should appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in Court. If a non-advocate pecialises in practicing in Court, professionally he will be violating the text of the interdict in the Advocates Act, which the Court cannot allow him to do so. Nevertheless it is open to a person who is a party to a proceeding to get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions ,or in a few cases. “

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Citation: [1977 ACR SC 363], [1978 AIR SC 1019], [1978 SCC 2 165], [1978 SCC CRI 168], [1978 SCR 3 493], [1978 ALR 4 353], [1978 CAR 174], [1978 CRLR 161], [1978 MLJ CRI 1 640], [1978 UJ SC 301], [1978 CRLJ SC 778]

Other Sources:

https://indiankanoon.org/doc/1704613/

https://www.casemine.com/judgement/in/5609abd1e4b014971140d6a8

Shades of Knife

True Colors of a Vile Wife

Category: Supreme Court of India Judgment or Order or Notification

Radhakrishna and another Vs Gokul and others on 31 October, 2013

Parimal Vs Veena @ Bharti on 8 February, 2011

Arjun Singh Vs Mohindra Kumar & Ors on 13 December, 1963

Avishek Goenka Vs Union Of India & Anr on 27 April, 2012

Vijayan vs Sadanandan K. & Anr on 5 May, 2009

R. Mohan Vs A.K Vijaya Kumar on 3 July, 2012

Vinay And Others Vs State Of Karnataka And Another

K. Karunakaran Vs T. V. Eachara Warrier on 16 November, 1977

Hari Kishan & Anr Vs Sukhbir Singh & Ors on 25 August, 1988

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978